CITATION: R. v. Nour Marakah, 2015 ONSC 1576
COURT FILE NO.: 13-30000622-0000
DATE: 2015/02/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NOUR MARAKAH
Accused
Erin Pancer, for the Crown
Wayne Cunningham, for the Accused
HEARD: January 15, 2015
REASONS FOR SENTENCE
A.J. O’MaRRA J.:
[1] Nour Marakah was found guilty after trial on 7 counts involving the possession, conspiracy to traffic and trafficking of 13 firearms – all handguns with ammunition. Marakah was found guilty under the Criminal Code of the following:
1: Count 1, Conspiracy to traffic firearms between June 11 and November 6, 2012 contrary to s.99 (1),
2: Count 12, Possession of a loaded restricted traffic a firearm, a Sig Sauer P220 .45 calibre handgun, between October 19 and November 6, 2012 contrary to s.95 (1),
3: Count 13, Unauthorized possession of a firearm a Sig Sauer P220 .45 calibre handgun, between October 19 and November 6, 2012 contrary to s.92 (1),
4: Count 25, Conspiracy to traffic a firearm, a Jericho 9mm handgun, on November 6, 2012, contrary to s.99 (1),
5: Count 27, Conspiracy to traffic a firearm, a CZ 9mm handgun, on November 6, 2012, contrary to s.99 (1),
6: Count 31, Trafficking a firearm, a Norinco NP22 9mm handgun, between July 23 and November 6, 2012, contrary to s. 99 (1), and
7: Count 32, Trafficking a firearm, a Norinco NP22 9mm handgun, between August 29 and September 28, 2012, contrary to s. 99 (1)
[2] All of the provisions carry a maximum penalty of 10 years imprisonment, and ss.99 requires a mandatory minimum sentence of 3 years imprisonment.
[3] The 9 mm and .45 calibre handguns and ammunition were acquired by Nour Marakah through his co-conspirator, Andrew Winchester.
[4] The evidence tendered at trial, on consent following pre-trial motions, established that Winchester at Marakah’s direction purchased the 13 firearms, 12 on behalf of an unidentified third party or parties and one other, a Sig Sauer P220 .45 calibre handgun with ammunition for Marakah’s personal possession. Two of the 13 firearms, Norinco NP22 9mm handguns were recovered by police at crime scenes. The majority of the firearms acquired by Winchester and put on the street remain unrecovered.
Factual Background
[5] By way of background, Andrew Winchester, age 23, worked for a security company and had a firearm possession and acquisition license under the Firearms Act. Between June 8 and November 6, 2012 he purchased 47 handguns, 2 long guns, and 49 boxes of ammunition from two separate gun stores in the Toronto area for a total cost of over $36,000. All of the firearms that he purchased, some of which in multiples, were registered to his parents’ home address. Several of the firearms were recovered at crime scenes with serial numbers removed. After the police restored the serial numbers, they commenced an investigation into Winchester’s activities as the registered purchaser and owner of the weapons.
[6] On November 6, 2012, Winchester was arrested after purchasing several more firearms. His cell phone was seized and searched. A series of text messages between Winchester and Marakah from October 1 to November 6, 2012 were discovered. The content of the text messages revealed that Marakah was directing Winchester to purchase various firearms and ammunition to be sold to others. Nour Marakah was arrested November 7, 2012.
Co-Conspirator: Andrew Winchester
[7] Winchester pleaded guilty before Nordheimer J., April 15, 2014 to conspiracy to traffic, trafficking and possession offences involving the 47 handguns and received an 8 year sentence, less time spent in pre-sentence custody.
[8] On sentencing Winchester, Nordheimer J. accepted that he did not have any knowledge or involvement as to who ultimately received the firearms. Rather, his involvement started and finished with Marakah, who asked Winchester to purchase the firearms.
The Background of the Offender
[9] Mr. Marakah was 24 at the time he committed the offences. He was born August 27, 1988 in Beirut, Lebanon. He relocated with his family to Canada in 1996. He completed high school and attended a community college program for child and youth work, but left after one year to pursue a music career. He continued to live at home with his parents. He has no dependents.
[10] A number of letters were filed in support of Marakah, which outline his participation in community work and the strong support he has from his family and friends. Many friends have written letters stating that they find it difficult to reconcile the youth and young man that they have known with his current offences. Rebecca Shafiee, a family friend writes:
His involvement with guns makes no sense given the kind of person he is and is just out of place. We have always known Nour to be a kind, caring, intelligent young man who came from a good family and good home. He was involved in the community and at school and was never known for being a troublemaker. I cannot understand why Nour would ever be involved in such matters.
[11] The letters indicate as well that Nour Marakah has been involved in community work such as having participated in the organization of a peace march following a shooting that occurred at a neighbourhood barbeque in the Danzig area of Toronto July 16, 2012, which resulted in the death of two young people, a 14 year old girl and 23 year old man, and the wounding of 23 others. His mother, Sara Bayour, writes:
In August 2012, Nour helped to organize with P. Rain musician and some other musician and community members from Danzig area Scarborough with the peace march. Hundreds of people attended including government officials and the whole neighbourhood. That was to raise awareness against violence and guns on the streets, after a deadly shooting at a BBQ summer party.
[12] Counsel for Marakah advised that Mr. Marakah’s passion for music became a driving force in his young life. Tendered on the sentencing hearing were three DVDs of Marakah and other individuals performing “rap” music. Some of the music, performed and produced by him, has played on radio and television. Marakah performed under the name “Strizzy”, the name used in the text messages as between he and Winchester.
[13] There is no information as to any past employment. Prior to his arrest and detention he lived with his parents in their home. At the time of his arrest $4,000 cash was found hidden in a ceiling panel in a closet. Evidence was heard on the trial that the firearms that were acquired by Winchester could be sold on the street for two to three times their retail value of $400 to $900. I am satisfied Marakah was involved in a commercial enterprise to traffic illegal firearms. He was engaged in the business of buying and selling firearms and ammunition as a source of income.
[14] Mr. Marakah has a youth record of conviction for assault with a weapon.
Position of the Parties
[15] The Crown suggests that an appropriate sentence in the circumstances of this case would be in the range of 12-14 years, based on certain of the sentences being served consecutively. However, based on the principle of totality the Crown seeks a period of incarceration in the range of 10 to 12 years before any pre-sentence custody credit.
[16] Defence counsel acknowledged in submissions that Mr. Marakah’s offences are deserving of a penitentiary term of imprisonment. He suggests a range of 6 to 8 years, less the pre-sentence custody and some credit for his time while on bail.
Relevant Sentencing Principles
[17] Section 718 of the Criminal Code states that 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 a number of objectives.
[18] Those objectives include denunciation of unlawful conduct, deterrence of the offender and others who might be similarly inclined, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender.
[19] Further, the sanction imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The total sentence should not be unduly harsh. The Court shall also take into consideration that the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[20] Our Courts have stressed time and again that sentences imposed for firearm offences must further the sentencing goals of denunciation, deterrence and the protection of the public. In R. v. Danvers, 2005 30044 (ON CA), [2005] 199 CCC (3rd) 490 (OCA), a murder case involving the use of a firearm Armstrong J.A. stated at para. 78 the following:
There is no question that our Courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal firearms in the greater Toronto area is a cause for major concern in the community and must be addressed.
[21] Firearms are inherently dangerous. As Molloy J. observed in R. v. Ferrigan, 2007 16828 (ON SC), [2007] O.J. No. 1883 at para. 25 “Guns are dangerous, handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous…handguns are used to shoot people”.
[22] In an earlier case, R. v. Felawka, 1993 36 (SCC), [1993] 4 S.C.R. 199 Cory J. stated at para. 21:
A firearm is expressly designed to kill or wound. It operates with deadly efficiency in carrying out the object of its design. It follows that such a deadly weapon can, and of course, be used for purposes of threatening and intimidating. ...A firearm is quite different from an object such as a carving knife or an icepick which will normally be used for legal purposes. A firearm, however, is always a weapon. No matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence.
[23] Although denunciation and deterrence are the primary objectives in such cases, I am mindful that Marakah’s prospects for rehabilitation must also be considered. In R. v. Borde, 2003 4187 (ONCA), a case of possession of a restricted loaded firearm and use of a firearm in the commission of an offence, the Court of Appeal noted that the length of a first penitentiary sentence for a youthful offender should rarely be determined solely on the objective of denunciation and general deterrence. It should be the shortest possible sentence to achieve the relevant sentencing objectives.
[24] In imposing sentence the court should focus on the principle of totality. The judge should determine the appropriate length of the total sentence and then determine the appropriate sentence with respect to each count. The rule originates in R. v. Jewell, 1995 1897 (ON CA), 1995 O.J. No. 2213 wherein Finlayson J. stated:
In my view, the appropriate approach in cases such as the two under appeal is to first, identify the gravamen of the conduct giving rise to all of the criminal offences. The trial judge should next determine the total sentence to be imposed. Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in the total sentence and which appropriately reflect the gravamen of the overall criminal conduct. In performing this function, the trial judge will have to consider not only the appropriate sentence for each offence, but whether in light of totality concerns, particular sentences should be consecutive or concurrent to the other sentences imposed.
[25] In this instance, the gravamen of the overarching offence is the conspiracy between Marakah and Winchester to traffic the firearms. The fact that two substantive counts of trafficking with respect to firearms included in the conspiracy charge were registered and that one firearm was kept for Mr. Marakah’s own protection during the ongoing conspiracy does not change the analysis in my view. I find, as in R. v. Winchester para. 34, Marakah’s actions are “one continuous course of conduct and thus should attract concurrent sentences”.
The Appropriate Range of Sentence
[26] While there is limited jurisprudence in relation to sentences imposed for multiple counts of trafficking, it is clear from the case law provided by counsel that the range appears to be 4 and 9 years incarceration in the penitentiary. (See R. v. Beljelic, [2001] O.J. No. 2853 (OCA), R. v. Tuck, [2007] ONCA 495, R. v. Balatoni, [2004] O.J. No. 5311 (SCJ), R. v. Faria, [2013] O.J. No.1102, R. v. Danny Santapaga, unreported, December 17, 2013, (OCJ), R. v. Andrew Winchester, 2014 ONSC 2591)
[27] In this instance, the cases cited which have greater similarity and applicability are Santapaga, and Winchester, Marakah’s co-accused.
[28] Mr. Santapaga pleaded guilty to offences relating to trafficking and possession of 14 firearms. McArthur, J. sentenced him to 9 years imprisonment. Mr. Santapaga was a 46 year old first offender, married and father of two children. He had been a successful self-employed financial adviser. However, as a result of a car accident and resulting debilitating injuries he was unable to return to work. He began to borrow money to support his family. In addition, his wife was permanently laid off from her work and lost medical benefits needed to assist her with her condition of multiple sclerosis.
[29] In trying to make ends meet, he borrowed money from family members and then from an unsavoury individual. Mr. Santapaga had no criminal record and possessed a lawful firearms’ license. Unable to pay back the loan to the unsavoury individual, he agreed to purchase firearms for him to repay his debt.
[30] In sentencing Santapaga to 9 years, the court found that his conduct was not isolated or impulsive. He went to gun stores on 10 separate occasions making premeditated purchases. However, the court found that his actions were motivated not by greed but rather as a result of the desperate situation he found himself in.
[31] Mr. Winchester pleaded guilty to the conspiracy to traffic and trafficking 47 handguns. At the time of sentencing he was 24 years old, engaged to be married, and father of two sons aged 5 and 6. He had no criminal record. Up to the time of his arrest he was employed at Garda Security. The court observed that he had strong family support and that his potential for rehabilitation was high. Nordheimer J. found that his reason for purchasing the firearms for Nour Marakah was that he felt he owed a debt to Marakah for helping him when he was being bullied in high school. Further, the Court found that Mr. Winchester had no knowledge where the firearm ultimately went or any involvement in the process. He was not the mastermind behind the trafficking ring. His participation was out of a sense of debt and loyalty to a friend who had protected him at an earlier age.
[32] In some respects Santapaga and Winchester were in a similar situation – lawful purchasers who felt compelled by circumstances of indebtedness to participate in criminal activity at the bidding of others. Such are not the circumstances of Marakah.
Aggravating and Mitigating Circumstances
[33] One of the significant aggravating factors in this matter is the number of firearms Mr. Marakah was responsible for putting on the street. He was found guilty of conspiring to traffic 12 firearms, another firearm he kept for himself. Further, two of the 12 firearms were found at crime scenes and the majority of firearms remain unrecovered.
[34] Marakah's motivation for the trafficking offences was for monetary gain. There is no evidence of prior gainful employment or that he had any debts or significant financial obligations. Yet, on arrest substantial sum of money was found hidden and he was able to purchase and possess a firearm and ammunition worth approximately $3,000.
[35] The Crown argues that Marakah was the “mastermind” of the firearm trafficking relationship between him and Winchester and the ultimate purchasers. Whereas, Defence counsel contends Marakah was not the driving force or organizer behind the trafficking ring, rather he was only the middleman who made purchases from Winchester at the behest of an unidentified third party or for his personal possession.
[36] In finding Marakah guilty of conspiracy to traffic, trafficking firearms, and possession of a restricted firearm, based on the agreed statement of fact and analysis of the content of the text messages, I am satisfied that prior to the commencement of the text messages of October 1, 2012 and thereafter until Marakah and Winchester were arrested, they operated together in the purchase and sale of firearms. Marakah took the orders from another person or others and gave direction to Winchester as to what to purchase. Marakah made use of Winchester’s ability to purchase firearms legally. Marakah received the firearms and ammunition from Winchester and then conveyed them to the buyer or buyers. While Winchester may not have known the ultimate destination, I have no doubt that Marakah knew they were sold to others for unlawful purposes.
[37] In mitigation, counsel submits that Mr. Marakah is relatively young man with a minimal criminal record and with strong love and support from his family and friends. He has demonstrated a positive prospect for rehabilitation having participated in community and church activities and he has worked hard in pursuit of his dream of success in the music business.
[38] With respect to his musical pursuits, I note from viewing the music videos tendered on the sentencing hearing that in Marakah’s productions and performances he affects a “gangstra”, a gang member demeanour. Some of the rap lyrics refer to the use of guns and violence. In one of his videos he appears to wear a bulletproof vest and he refers to having a “40 cal.” in his waist, a firearm reference, and that “three N….s died when they tried to blam me”.
[39] In letters of support he is described as being a good, kind and caring person who would do such things as help organize a peace march in August 2012 following the tragic consequences of gun violence that occurred in the Danzig area in July 2012. Yet, at the same time he was acting as a purveyor of illegal, lethal firearms into the same community for gain. I find Nour Marakah to be of duplicitous character.
[40] Although Mr. Marakah may not have been the mastermind or organizer of the distribution of the illegal firearms, he was instrumental in the distribution chain. In the text messages he directed Winchester as to the firearms to purchase and arranged payment. His actions were not impulsive; they were premeditated, knowing the lethal risk that the firearms presented to the community.
Sentence
[41] The offences committed here require a denunciatory and deterrent sentence. The sentences imposed must be exemplary. Persons who put illegal firearms into the hands of those who may use them for criminal purposes and in doing so may kill or harm others need to know that they shall pay dearly for their crimes by the loss of liberty for very long periods of time.
[42] In light of the sentencing range canvassed above, and the principles of sentencing, including the need to affect denunciation, deterrence and the rehabilitation of the offender I have concluded that a fit and proper total sentence for Nour Marakah’s conduct is 9 years imprisonment.
[43] I find that counts 25 and 27 for conspiring to transfer particularized firearms, a Jericho 9 mm handgun and CZ 9mm handgun were amongst the firearms Marakah and Winchester conspired to transfer in count 1. Counts 25 and 27 are factually and legally duplicated in count 1, accordingly the rule against multiple convictions articulated in R. v. Kienapple, [1995] 1 S.C.R. 729 applies. Those counts shall be noted as stayed.
[44] The sentences imposed shall be served concurrently, as follows:
Count 1 – conspiracy to traffic firearms contrary to s.99 (1) - 9 years
Count 12 – possession of a loaded restricted firearm contrary to s.95 (1) - 4 years concurrent to Count 1.
Count 13 – unauthorized possession of a firearm contrary to s. 92 - 2 years concurrent
Count 31 – trafficking of a firearm contrary to s.99 - 4 years concurrent
Count 32 – trafficking a firearm contrary to s.99 - 4 years concurrent
Count 25 – conspiracy to traffic a firearm contrary to s.99 - stayed
Count 27 – conspiracy to traffic a firearm contrary to s.99 – stayed
[45] Mr. Marakah shall be given credit for pre-sentence custody on a 1.5 to 1 basis, (see R.v. Summers, 2014 SCC 26, 2014 S.C.C. 26). I am advised that he spent 35 days in custody from the date of his arrest until release on bail. However, he was subsequently detained July 29, 2013 for a breach of a bail condition and has remained in custody since. The total time spent in custody to today’s date is 607 days. Mr. Marakah shall be credited on a 1.5 to 1 basis resulting in approximately 910 days, or 2 years 6 months credit for pre-sentence custody.
[46] Counsel suggested that additional credit should be allowed for the 8 months he was on bail due to stringent bail conditions that required him to be in the presence of a surety when out of his house. I do not consider his time on bail to warrant crediting him the equivalent of being detained in custody. Mr. Marakah did not apply to vary the conditions and as indicated above he breached his conditions.
[47] In the result, Nour Marakah shall be sentenced to 9 years imprisonment less 2.5 years pre-sentence custody, thereby requiring him to serve a further 6.5 years.
[48] In addition, Mr. Marakah is also sentenced to a firearm prohibition pursuant to s.109 (2) (b) of the Criminal Code for life. A DNA order is also made pursuant to s.487.051 of the Criminal Code.
A.J. O’Marra J.
Released: February 20, 2015
CITATION: R. v. Nour Marakah, 2015 ONSC 1576
COURT FILE NO.: 13-30000622-0000
DATE: 2015/02/20
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
NOUR MARAKAH
Accused
REASONS FOR SENTENCE
A.J. O’Marra J.
Released: February 20, 2015