CITATION: R. v. Kenneth Muir, 2015 ONSC 3119

COURT FILE NO.: 14-3-0000754

DATE: 20150515

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Kenneth Muir

Accused

Beverley Olesko, for the Crown

Jason Rabinovitch, for the Accused

HEARD: January 16, 2015

DECISION ON SENTENCING

B.A. Allen J.:

BACKGROUND

The Charges

[1] Kenneth Muir was tried by judge and jury in November 2014. He was charged on several firearm related offences: armed robbery (count 1); pointing firearm (count 2); possessing firearm without licence or registration certificate (count 3); possessing a firearm knowing serial number defaced (count 4); possession of firearm without holding license or registration (count 5); possessing firearm knowing not holder of licence or registration certificate (count 6) using firearm while committing an indictable offence (count 7); using firearm in a careless manner (count 8); careless storage of ammunition (count 9). He was also charged on two drug-related offences: possession of cocaine (count 10) and possession of cocaine for the purpose of trafficking (count 11).

[2] Muir did not call a defence. The jury found him not guilty on pointing a firearm, possessing a firearm knowing serial number defaced, and on possession of cocaine for the purpose of trafficking. He was found guilty on all other counts.

Brief Background

[3] Kenneth Muir was jointly charged with Kyle Stevens with robbing the complainant, Randy Garner. Kyle Stevens pleaded guilty before trial.

[4] On August 2, 2012, Muir and Stevens had entered an apartment building and encountered Garner coming up the hallway towards them. They ran toward him armed with a loaded firearm and a hatchet. The facts did not clearly disclose who had the firearm and who had the hatchet. They were wearing coverings on their faces. They took Garner’s wallet and identification. Muir and Stevens fled the building and sped off in a vehicle parked in the building’s parking lot. The police were called and they pursued the offenders’ vehicle for some distance.

[5] In a nearby residential district, the offenders’ vehicle stopped, Muir got out of the vehicle and Stevens sped off. Muir fled over a fence and into the backyard of a home in the area. Shortly afterwards, the police found a backpack in a backyard containing a hatchet, a baggie with 56.09 grams of crack cocaine, two cellphones, a bandana, a 38 calibre loaded firearm, and Garner’s wallet and identification. A short time later, the police arrested Muir inside the entrance of a nearby apartment building.

EVIDENCE ON SENTENCING

[6] A Pre-Sentence Report (“PSR”) was prepared on January 15, 2012 by Muir’s probation officer. Muir was remarkably uncooperative in providing information for the PSR. He was only willing to provide his father as a source of information. Muir refused to name or to discuss his mother. He provided no contact information for any of his other relatives. Despite numerous attempts to engage the father in an interview, the efforts ended unsuccessfully.

[7] The information Muir provided was scarce. He described himself as “a private person for his whole life”. The biographical information that was available is as follows:

• Muir is an only child, born January 9, 1986, and was 26 years old when he committed the offences;

• He is a first-time offender with no previous involvement with community supervision;

• He grew up in Oshawa and Ajax and attained a high school education;

• He and his father at some point began to live alone in the family home but Muir declined to explain these circumstances;

• Muir repeatedly referred to his father’s disability but declined to provide details;

• Since the charges, his father has supported him but he indicated he was not aware of his father’s source of income;

• He indicated he had never been married, had no children, and was not involved in a romantic relationship;

• Muir did part-time work while in high school; after high school he did various labour jobs; he declined the request to provide a resume or a list of his jobs;

• His bail conditions allowed him to seek employment but he did not do so and gave contradictory excuses for this. It appeared to the probation officer that his main reason for not seeking employment was the requirement to inform the police of his work hours and location.

• Muir denied drug use and indicated he would have the occasional beer. The probation officer was unable to substantiate that information.

• He described his father as his main support system. He indicated he rarely socializes because of his surety-related bail restrictions.

• There are no reports of medical or psychiatric health issues.

THE LAW

Sentencing Principles

[8] Section 718 of the Criminal Code sets out some of the principles that underpin the objectives for sentencing: denunciation, deterrence and the separation of the offender from society.

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, 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:

a) to denounce unlawful conduct;

b) to deter the offender and other potential future offenders from committing offences; and

c) to separate offenders from society

[9] Proportionality is also a guiding principle for sentencing. It requires a sentence to be proportionate to the gravity of the offence, to be determined on the particular facts of the case. The “narrow focus” of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: R. v. Hamilton (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.).

[10] Parity is another governing principle. It requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M, [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.).

[11] The totality principle must be considered for some sentences. Section 718.2(c) provides “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh." The principle is engaged where there is a sentence for multiple offences and requires the court to craft a global sentence of all offences that is not excessive: M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 42, (S.C.C.). If the cumulative sentence is too harsh, the court must adjust the total sentence so it is not out of proportion to the gravity of the offences.

Aggravating and Mitigating Factors

[12] Section 718.2(a) of the Criminal Code requires the court in deciding the nature and extent of sentence to consider any aggravating and mitigating circumstances.

[13] I reviewed the aggravating and mitigating factors in this case. The aggravating factors are:

a) the robbery was planned given the use of disguises;

b) the robbery was committed in the hallway of a residential building during a summer day; while there is no evidence of others in hallway, it was risky to be carrying a loaded firearm and to commit a robbery when it would be reasonable to expect other people could come around;

c) lack of cooperation in providing critical information for the PSR, making it difficult to fully determine aggravating or mitigating factors; and

d) failure to take advantage of the variation to his bail conditions permitting him to seek employment.

[14] Unfortunate for the court’s assessment, due to Muir’s uncooperativeness, the court has little information from which to draw information that could be considered as mitigating or aggravating factors. The available information reflecting mitigating factors are:

a) Muir has no past criminal record;

b) He is of youthful age;

c) There is no evidence he has breached his bail conditions involving two-and-a-half years’ house arrest; and

d) the father appears to depend on Muir, to an unknown extent, because of an undisclosed disability.

[15] A convicted offender is permitted to maintain his innocence after his conviction. If there is an expression of remorse for the offences, this can be regarded as a mitigating factor. Muir has expressed no regret or remorse and as such he can seek no favour in sentencing on that basis.

Sentencing for Firearm Offences

[16] Section 344(1)(a)(i) of the Criminal Code provides for a mandatory minimum sentence of five years for a first offence of committing a robbery using a restricted or prohibited firearm. This is Muir’s first offence.

[17] The Court of Appeal has emphasized that the principles of denunciation and deterrence must be clearly reflected in sentences for gun-related offences. As the Ontario Court of Appeal stressed, “…our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest terms. The possession and use of illegal handguns in the Greater Toronto area is a cause for major concern in the community and must be addressed”: R. v. Danvers, 2005 30044 (ON CA), [2005] O.J. 3532, at para. 78, (Ont. C.A.).

[18] Speaking of how to regard a mandatory minimum when considering a sentence, Arbour, J., as she then was, for the Supreme Court of Canada, held:

Mandatory minimum sentences for firearm-related offences must act as an inflationary floor, setting a new minimum punishment to the so-called “best” offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence on all but the very worst offender who has committed the offence in the very worst circumstances.

R. v. Morrisey, 2000 SCC 39, [2000] S.C.J. No. 39, at para. 75, (S.C.C.)]

THE PARTIES’ POSITIONS

Kienapple

[19] There are three charges related to “possession” of a firearm: (a) count 3, possession loaded/prohibited firearm, contrary to s. 95(1); (b) count 5, unauthorized possession firearm, contrary to s. 91(1); and (c) count 6, possession firearm knowing its possession is unauthorized, contrary to s. 92(1). Sections 91(1) and 92(1) are Kienappled in relation to count 3 as they are “possession” offences all related to the loaded firearm found in the backpack.

[20] Regarding count 9, careless storage of ammunition contrary to s. 86(1), since the ammunition was not separate of the firearm but held in the firearm at all times, and that was the only ammunition seized, this count too is Kienappled in relation to count 3 as falling within the same set of facts.

[21] Count 3 therefore remains for sentence.

[22] There are three “use of firearm offences”: (a) count 1, robbery with firearm, contrary to s. 344(1)(a); (b) count 7, use of firearm in commission of indictable offence, contrary to s. 85(1); and (c) count 6, careless use of a firearm, contrary to s. 86(1).

[23] Those three offences involve “use” of the firearm during the robbery in the apartment building. The evidence did not disclose which offender used the firearm, but Muir was at minimum a party to that offence. Counts 7 and 8 are therefore Kienappled in relation to count 1

[24] Count 1 therefore remains for sentence.

The Crown’s Position

[25] The Crown seeks a sentence above the mandatory minimum based on the aggravating factors. She seeks a six to seven year penitentiary sentence for robbery with a firearm.

[26] The Crown stressed the great safety risk to the public of Muir’s use of a loaded firearm to commit a robbery in a residential building on a summer day where easily children might have been around. The fact that the firearm was discarded in a backpack in the backyard of a home also posed a risk to that neighbourhood. She also points to the fact Muir did not make fruitful use of his allowable time to seek education or employment.

[27] As an aggravating factor, the Crown points to Muir’s uncooperativeness in refusing to provide critical information for the PSR.

[28] The Crown also seeks a ten-year firearms prohibition under s. 109 of the Criminal Code which is to conclude ten years after his release from prison. Under s. 487.051(1) of the Criminal Code, it is mandatory that the court impose a DNA order for a primary designated.

The Defence’s Position

[29] The defence argues the evidence does not support a sentence above the five-year mandatory minimum. He emphasizes that Muir had not been found in breach of house arrest during his two-and-a-half-year bail period. He submitted that Muir’s conduct on bail was affected by his father’s dependency on him because of his medical conditions. The defence takes the position that although his bail conditions afforded him the opportunity to seek employment or schooling, Muir did not do so as he continued to conduct his life much as he did before he was arrested. He has always been a private and secretive person who has for some time had the responsibility of assisting his father.

[30] The defence also pointed to the mitigating factors of Muir not having a criminal record and being a youthful person.

[31] The defence also asked the court to consider the question of parity in relation to the sentence of Muir’s co-accused, Stevens. Stevens pleaded guilty on the first day of trial to charges of robbery and dangerous driving and acknowledged he had the hatchet that was found in the backpack. Counsel advises that Stevens received a sentence of six years, less credit for 27 months of house arrest. It is difficult to compare the two circumstances. For instance, there is no evidence before the court of whether Stevens was a first offender or whether he breached house arrest.

[32] The defence also submitted the fact there is no evidence that children or other persons were around the hallway during the robbery should be seen as minimizing the danger of the situation.

Case Authorities

[33] Cases involving robbery with a firearm were before the court.

[34] In R. v. Murray, the Ontario Superior Court imposed a six-and-a-half year sentence in circumstances where the offender, a 22 year old first offender, had discharged his firearm in a public residential area near a school: [R. v. Murray, [2008] O.J. No. 2107 (Ont. S.C.J.)].

[35] In R. v. Stoddart, the Ontario Superior Court sentenced the offender to six years with sentences for other offences to run concurrently. The offender, a 29 year old with a dated U.S. record, had robbed a convenience store with a loaded shot gun which he pointed for some time at the head of the store owner. The judge took into account the particular vulnerability to armed robbery faced by neighbourhood convenience stores: [R. v. Stoddart, [2005] O.J. No. 6076 (Ont. S.C.J)].

[36] Cases on various charges of possession of firearms and careless use and storage of firearms were presented to the court.

[37] In R. v. Velez-Lau, the court imposed a four-year prison sentence on a 24 year old offender for possession of two firearms with ammunition, stored in a locker: R. v. Velez-Lau, 2011 ONSC 4805, [2011] O.J. No. 3710 (Ont. S.C.J.). In R. v. Morant, the offender, age 22 with no criminal record, pleaded guilty to two charges of possession of a loaded firearm and the court imposed a 40-month sentence: R. v. Morant, 2013 ONSC 1969, [2013] O.J. No. 2177 (Ont. S.C.J.). In R. v. Wint, the court imposed an 18-month sentence on a 29-year old offender with an extensive criminal record, for possession of a loaded prohibited weapon and possession of a weapon for a dangerous purpose: [R. v. Wint, [2006] O.J. No. 4281 (Ont. S.C.J.)]. In R. v. Fletcher, the police seized two loaded firearms from an apartment. The offender, age 26, with a criminal record, pleaded guilty to several firearm-related charges and received a global sentence of six-and-a-half years: R. v. Fletcher, 2008 6940 (Ont. S.C.J.).

[38] In R. v. Williams, the police seized a loaded, sawed-off rifle from the offender’s apartment. The court imposed a global four-year prison sentence for various firearms-related offences on an offender, age 34, with a criminal record: [R. v. Williams, [2007] O.J. No. 1354 (Ont. S.C.J.)]. In R. v. Brown, the offender was found in possession of a firearm and ammunition. He pleaded guilty and was sentenced by the trial judge to a five-and-one-half year prison sentence. The Ontario Court of Appeal overturned the trial sentence and imposed a seven-year sentence in view of the accused’s prior convictions on weapons charges and the seriousness of having secreted a loaded weapon in his cloths in public spaces: R. v. Brown, 2010 ONCA 745 (Ont. C.A.)

CONCLUSION

[39] I considered the parties’ submissions and the case authorities and arrive at the following disposition.

[40] Regarding the sentence for armed robbery, I see no reason to depart from the 5-year mandatory minimum. The cases presented to me, where sentences exceeded the mandatory minimum, had aggravating factors not present in the case at-hand. In R. v. Murray, the offender discharged a firearm in a public place near a school. He received six-and-a-half years’ imprisonment. In R. v. Stoddart, the offender was somewhat older than Muir, had a previous, dated criminal record and held a loaded firearm to the head of a convenience store owner during the robbery. He received 6 years’ imprisonment.

[41] In fashioning a sentence, I took into account the mitigating factors of Muir’s youthful age, his lack of prior convictions and his compliance during house arrest. I also took into account his responsibilities around his father’s care.

[42] I considered the aggravating factor of the danger to the public of using a firearm in the hallway of an apartment building and leaving it in a backyard with the potential for harm to innocent people. I am also aware this was a planned armed robbery in that the offenders were wearing disguises. I am concerned about his lack of cooperation with providing information for the PSR. It did not serve Muir’s interests to maintain his old lifestyle after being convicted of serious offences and when facing sentence.

[43] The parties jointly submitted a fit sentence for count 3, possession/prohibited firearm, is three years and a fit sentence for count 10, the drug offence, is three months.

[44] I find the sentence imposed is reasonable in all the circumstances and reflects the appropriate level of denunciation and deterrence as befits the serious nature of firearm offences.

SENTENCE

[45] Kenneth Muir will you stand and hear your sentence.

[46] I impose the following sentence:

• five years’ imprisonment on count 1 (robbery with firearm);

[47] I impose the following further sentences to run concurrently with count 1.

• three years’ imprisonment on count 3 (possession loaded/prohibited firearm);

• three months’ imprisonment on count 10 (possession of cocaine)

[48] I also order a ten-year weapon prohibition under section 109 of the Criminal Code. As mandated under the DNA provisions of the Criminal Code, I also make a DNA order.

B.A. Allen J.

Released: May 15, 2015

CITATION: R. v. Kenneth Muir, 2015 ONSC 3119

COURT FILE NO.: 14-3-0000754

DATE: 20150515

ONTARIO

SUPERIOR COURT OF JUSTICE

Her Majesty the Queen

– and –

Kenneth Muir

Accused

REASONS FOR SENTENCE

B.A. Allen J.

Released: May 15, 2015