CITATION: R. v. Morgan, 2015 ONSC 2096
COURT FILE NO.: CR/14/70000/4310000
DATE: 20150331
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JERMAINE MORGAN
Ms. E. Jackson, for the Crown
Ms. S. von Achten, for Mr. Morgan
HEARD: February 19, 2015
M. Forestell J.
REASONS FOR SENTENCING
Offences
[1] Mr. Morgan was found guilty of two offences: possession of a loaded restricted firearm and possession of a firearm knowing that he was not the holder of a license or registration certificate.
[2] On February 19, 2015 I heard submissions on sentencing and reserved my decision on sentencing until today.
Circumstances of the Offences
[3] The circumstances of the offences are set out in detail in my reasons for judgment dated February 19, 2015 (2015 ONSC 1122). By way of summary, on September 22, 2013, Mr. Morgan was at a club in Toronto. Several shots were fired in the club and five people were injured. The patrons of the club ran from the club when the gunfire began. Mr. Morgan also ran from the club. He was stopped and searched a short distance from the club and was found to be in possession of a loaded handgun. None of the shots fired at the club were fired from Mr. Morgan’s gun.
[4] Mr. Morgan testified on the sentencing hearing and said that he brought the gun to the club because he viewed the club as dangerous and felt that he needed the gun to protect himself. He testified that he now realizes that this was a mistake.
Circumstances of Mr. Morgan
[5] Mr. Morgan is 27 years-old. He has a criminal record. In addition to findings of guilt as a youth for assault and robbery, Mr. Morgan was found guilty and sentenced as an adult for six robbery charges in 2005. These offences were committed by Mr. Morgan when he was 16 years-old. He received an eight-year sentence, but was credited for three years of pre-trial custody.
[6] Mr. Morgan is single and has no children. He has a girlfriend who has been supportive of him. Mr. Morgan, following his release from the penitentiary in 2008, was convicted of possession of a controlled substance and received a $1,200.00 fine. Other than the drug conviction in 2008, Mr. Morgan has had no encounters with the criminal justice system from the time of his release until he committed the offences before this Court.
[7] Prior to this offence, Mr. Morgan attended a college course and was about to begin a placement working as a counsellor when he was arrested on these charges. He expects to be able to continue with this career plan upon his release from prison after serving his sentence on these charges. Mr. Morgan’s goals appear to be realistic based on the continued support from the College he attended. His efforts to pursue his education are commendable and show that he is capable of rehabilitation.
[8] Mr. Morgan has spent just over 18 months and 1 week in pre-trial custody or the equivalent of 27.5 months.
Positions of the Parties
[9] The Crown submits that a sentence of 5 to 6 years’ imprisonment should be imposed in light of the seriousness of the offences and the fact that Mr. Morgan was subject to a firearms prohibition at the time of the offences.
[10] Counsel for Mr. Morgan submits that I should impose a sentence of 28 to 33 months imprisonment. Counsel for Mr. Morgan argues that Mr. Morgan’s rehabilitation is best advanced by giving him the opportunity to complete his placement for the course that he started before his arrest.
Analysis
[11] In considering the appropriate sentence to be imposed on Mr. Morgan I have considered the general purposes, principles and objectives of sentencing, set out in the Criminal Code, R.S.C., 1985, c. C-46. The fundamental principle of sentencing set out in s. 718.1 of the Code requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[12] Section 718 of the Criminal Code identifies the objectives of sentencing, including denunciation, specific and general deterrence, separation of the offender from society and the rehabilitation of the offender.
[13] I have also considered s. 718.2 of the Criminal Code which requires that I take into account other principles, including that a sentence may be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or the offender and that a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances.
[14] The Court of Appeal for Ontario has identified the seriousness of firearms offences in the Toronto area.[^1]
[15] The Court of Appeal has held that in sentencing for firearms offences denunciation, deterrence and the protection of the public are the primary sentencing objectives. Generally, exemplary sentences are required for these offences.[^2]
[16] Although deterrence, denunciation and the protection of the public are the paramount objectives in sentencing for this type of offence, rehabilitation remains a valid sentencing objective.
[17] The range of sentence for the offence of possessing a loaded firearm has been addressed by the Court of Appeal. In R. v. Nur, the Court of Appeal noted at para. 51 that the criminal offence of possession of a loaded firearm without a license ranges in gravity from "an outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade" to an otherwise law-abiding gun owner who has failed to obtain the proper licence to possess the firearm. One important factor in assessing the seriousness of the circumstances of the offences within this spectrum is the degree of risk or danger to the public.
[18] In R. v. Smickle, the Court of Appeal held that the appropriate sentence for Mr. Smickle was two years less a day, but also noted at para. 19 that "most s. 95 offences will attract a penitentiary term even for first offenders." Mr. Smickle’s possession of the loaded handgun was described as “somewhat less serious than the typical s. 95 offence.” Mr. Smickle possessed the handgun within an apartment unit. However, he also brandished the gun and created a real risk to the occupants of neighbouring units and to himself in the event of an accidental discharge. Mr. Smickle had no criminal record. The Court in Smickle held that the circumstances supported a sentence at or very near the maximum reformatory sentence. The Court said at paragraph 30:
The respondent's conduct falls squarely at the ‘true crime’ end of the s. 95 spectrum …described in Nur. He had a loaded cocked gun in his hand. He was engaged in conduct that posed a serious and immediate risk to others. He had no authority to possess the gun at any place or in any circumstances. Even having regard to the personal circumstances of the offender, a sentence approaching or at the maximum reformatory sentence (two years less a day) would have been appropriate absent a mandatory minimum sentence.[^3]
[19] In the recent case of R. v. Carrol, Molloy J. reviewed several recent cases addressing sentencing for possession of loaded firearms.[^4] Those cases were the following:
In R. v. Scarlett, the offender was 22 years-old with no criminal record. He fled from police in the hallway of an apartment while clutching a loaded handgun to his waist inside his pants. He was apprehended in the bedroom, where police also found crack cocaine. Strathy J. (as he then was) held that in the absence of the three-year minimum sentence, the appropriate sentence for Mr. Scarlett was three years…
In R. v. Ellis, K.L. Campbell J. sentenced a 32 year-old repeat offender to six years for possession of a loaded firearm in a motor vehicle… Mr. Ellis had a prior conviction for possession of a loaded firearm along with drug possession…
[I]n Ferrigon. Mr. Ferrigon fled from the police through a housing complex and discarded the handgun he was carrying in the backyard of a residence, where anyone, including an innocent child, might have come across it. He was 25 years-old at the time. He had two prior convictions for possession of a loaded handgun and was still on probation at the time of the offence…[A sentence of five years was imposed][^5]
[20] In R. v. Carrol, Molloy J. imposed a sentence of four and one-half years for the possession of the loaded firearm and 18 months for the breaches of the prohibition orders, concurrent to each other but consecutive to the four and one-half years. She imposed a six-month concurrent sentence for the breaches of the probation orders. Mr. Carrol had a record for drug offences, violence, weapons and breaches of court orders. At the time of the offences Mr. Carrol was subject to two probation orders.
[21] In this case, Mr. Morgan’s possession of the loaded firearm in a crowded bar and then running along the street in a busy downtown area was conduct that posed a serious and immediate risk to others. The location of the offence is a serious aggravating factor. Other aggravating factors are Mr. Morgan’s record and the fact that he was subject to at least one prohibition order. Mitigating factors are that Mr. Morgan is relatively young and that he has made progress in his education since his release from his last sentence. I also have taken into account that there was a gap of five years in Mr. Morgan’s record. There is no evidence of other criminality such as drug trafficking associated with the possession of this firearm.
[22] Sentencing is an individualized process and no two cases are identical. However, the range of sentence for an offence like the one before me in this case and an offender like Mr. Morgan, is 4 to 6 years. The circumstances of this offender and this offence are similar to the circumstances in R. v. Carrol. Mr. Morgan’s record is somewhat more serious than Mr. Carrol’s record and this is not his first significant penitentiary sentence. However, unlike Mr. Carrol, I am of the view that there are mitigating circumstances and good prospects for rehabilitation. The parole report filed by the Crown indicates that Mr. Morgan showed progress in custody and that when separated from his former co-accused his conduct in the institution was good.
[23] In all of the circumstances, I have concluded that the appropriate sentence, before credit for pre-trial custody, is a sentence of four and one-half years. In reaching this conclusion I have taken into account the aggravating factor of the breach of a prohibition order. Pursuant to s. 725(2)(b) of the Criminal Code the indictment should be endorsed to reflect that this uncharged offence was taken into account.
Conclusion
[24] Accordingly I impose the following sentence:
• On count 1, possession of a loaded restricted firearm, the sentence is 54 months;
• On count 2, possession of a firearm knowing that he was not the holder of a licence or registration certificate, the sentence is 12 months, concurrent.
[25] There is no dispute that Mr. Morgan is entitled to 1.5 to 1 credit for the time spent in pre-trial custody. He will be credited for 27.5 months for pre-trial custody. The sentence which remains to be served therefore is 26.5 months.
[26] There will be a mandatory prohibition order under s. 109 of the Criminal Code for life.
[27] Section 95(1) is a secondary designated offence under s. 487.04 of the Criminal Code. Taking into account the seriousness of the circumstances of the offence and given the minimal intrusion on Mr. Morgan’s privacy it is in the interests of the administration of justice to make a DNA order under s. 487.051(3). I therefore order that Mr. Morgan is required to provide such number of samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis.
[28] I will further order that the firearm and ammunition be forfeited.
M. Forestell J.
Released: March 31, 2015
CITATION: R. v. Morgan, 2015 ONSC 2096
COURT FILE NO.: CR/14/70000/4310000
DATE: 20150331
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JERMAINE MORGAN
REASONS FOR SENTENCING
M. Forestell J.
Released: March 31, 2015
[^1]: R. v. Danvers, 2005 CanLII 30044 (ON CA), [2005] O.J. No. 3532, 201 O.A.C. 138 and R. v. Brown, 2009 ONCA 563
[^2]: R. v. Nur, 2013 ONCA 677 at para. 206; R. v. Smickle, 2014 ONCA 49 at para. 18
[^3]: R. v. Smickle, 2013 ONCA 678
[^4]: R. v. Carrol, 2014 ONSC 2063 at paras. 26-28
[^5]: R. v. Scarlett, 2013 ONSC 562; R. v. Ellis, 2013 ONSC 3092; R. v. Ferrigon, [2007] O.J. No. 1883, 2007 CanLII 16828