R. v. Sheikh-Hussein, 2015 ONSC 3199
COURT FILE NO.: CR-14-50000345-0000
DATE: 20150513
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
M. Wilson, for the Crown
- and -
MOHAMED SHEIKH-HUSSEIN
C. Morris, for Mohamed Sheikh-Hussein
Defendant
HEARD: May 13, 2015
Thorburn J.
REASONS FOR SENTENCE
1. The Convictions
[1] Mohamed Sheikh-Hussein is convicted of,
a) robbing a Canadian Imperial Bank of Commerce (CIBC) Bank using an imitation firearm (section 85(2) of the Criminal Code);
b) threatening death (section 264.1(1) of the Criminal Code); and
c) failing to comply with two probation orders (section 733.1(1) of the Criminal Code).
2. The Principles of Sentencing
[2] I am required by law to impose a just sanction that meets one or more of the following six objectives:
a) to denounce unlawful conduct;
b) to deter the offender and others from committing offences;
c) to separate offenders from society where necessary;
d) to assist in the rehabilitation of offenders;
e) to provide reparations for harm done to victims or to the community; and
f) to promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.
[3] Denunciation is important to reflect society’s condemnation of certain conduct. Deterrence is important to deter Mr. Sheikh-Hussein and others who would commit such offences.
[4] The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[5] In deciding an appropriate sentence for Mr. Sheikh-Hussein I have considered the above principles, the particular facts of this case and the relevant case law as provided to me by counsel.
3. The Circumstances of this Offence
[6] The incident took place on June 27, 2013, at approximately 17:02. Ms. Faraone was the teller who served the robber and received the demand for payment. The robber stood in line and then came to Ms. Faraone’s counter. He passed her a note.
[7] It read, “Don’t make any movements. This is a fucking robbery. Give me the cash that’s in the front. Without any sudden movements. I have a gun on my waist. And I will shoot everybody in here. Starting with you. You have 2 minutes before I shot (sic) you in the face. Starting now!!!”
[8] The robber pulled an imitation gun out and showed it to Ms. Faraone quickly. He pulled it straight up into her view and then put it back. He did not point it at her. Ms. Faraone gave the robber $1,500 in bills. He left at approximately 17:40 without incident.
[9] In my reasons for judgment dated April 26, 2015, I outlined why I was satisfied beyond a reasonable doubt that Mr. Sheikh-Hussein was the robber.
4. Information about Mr. Sheikh-Hussein
[10] Mr. Sheikh-Hussein is almost 27 years old. He is a refugee from Somalia. His mother went missing during the civil war in Somalia and his father escaped to Europe without him when he was six years old. He came to Canada at the age of eight and was brought up by a series of aunts. He has had a very difficult childhood.
[11] Mr. Sheikh-Hussein attended high school in Toronto and is four credits short of obtaining his high school diploma. He states that he wants to complete his high school education.
[12] Mr. Sheikh-Hussein states that he is a binge drinker and that his prior convictions were committed while he was intoxicated. He has indicated a willingness to attend treatment but has not yet done so.
[13] Mr. Sheikh-Hussein has a lengthy criminal record that includes six prior robberies one of which involved violence, but none of which involved a firearm. Four of the robberies were committed within a very short period. He has also been convicted of one count of assault. He was on probation at the time he committed this robbery.
5. Aggravating and Mitigating Factors
[14] The aggravating factors are as follows:
a) Mr. Sheikh-Hussein has a significant criminal record as outlined above;
b) Mr. Sheikh-Hussein was on probation at the time he committed this offence; and
c) Mr. Sheikh-Hussein robbed a bank.
[15] The mitigating factors can be summarized as follows:
a) Mr. Sheikh-Hussein had a very difficult childhood;
b) Mr. Sheikh-Hussein is a young man; and
c) Mr. Sheikh-Hussein has expressed a desire to address his alcohol problem.
6. Positions of the Parties
[16] Both the Crown and Defence agree that deterrence and denunciation are the two key factors the court should consider when sentencing Mr. Sheikh-Hussein.
[17] The Crown suggests that in this case, there is little prospect of rehabilitation. He points to the fact that Mr. Sheikh-Hussein has committed seven previous robberies and has shown that he is unwilling to comply with the conditions of probation.
[18] Defence counsel states that Mr. Sheikh-Hussein has expressed a sincere desire to change and has indicated a desire to attend school and overcome his binge drinking. Mr. Sheikh-Hussein took the opportunity to speak and indicated that this is the longest time Mr. Sheikh-Hussein has spent in custody and that this has taught him that he needs to change his ways to stay out of jail.
[19] The Crown suggests that a global sentence of six years is appropriate, The proposed sentence is broken down as follows:
a) robbery-4 years;
b) use of an imitation firearm-1.5 years (consecutive to the above);
c) threatening death- one year (concurrent to the other counts);
d) failure to comply with probation 1- six months (consecutive to the other counts); and
e) failure to comply with probation 2- 6 months (concurrent to the other counts).
[20] Defence proposes a global sentence of three to four years. He suggests that this is appropriate given Mr. Sheikh-Hussein’s youth, that his prior convictions never exceeded two years, and he has expressed a desire to better himself. Moreover, a sentence of this length would (after taking into account the time he spent in presentence custody), enable a lengthy period of probation to be imposed.
7. The Legal Authorities Provided Regarding Sentence
[21] Counsel provided me with legal authorities to substantiate their submissions. The Crown relies on the case of R. v. Nembhard 2010 ONCA 420, [2010] O.J. No. 2420 to substantiate its claim that robbery merits a “substantial penitentiary sentence”.
[22] The Crown also relied on R. v. Gill [2004] O.J. No. 3368, (Ont. S.C.J.). In the Gill case, Mr. Gill robbed a bank of $2,500. He did not use a weapon (although the victim thought the cell phone might be a weapon) and there were no injuries to anyone involved. Mr. Gill was a heroin addict who had a lengthy criminal record including seven previous robberies. Unlike Mr. Sheikh-Hussein, Mr. Gill was not on parole when he committed the offence and Mr. Gill pled guilty to the offence. Mr. Gill was sentenced to seven years in the penitentiary.
[23] The Crown also relies on R. v. Slater [2008] O.J. No. 4519 aff’d 2010 ONCA 376, [2010] O.J. No. 2143 where a sentence of 8.5 years was imposed for a bank robbery committed by an offender with seven prior bank robbery convictions.
[24] The Defence relies on R. v. T.W. [2010] O.J. No. 3557 where the court imposed a sentence of five years on an offender who committed two armed robberies using an imitation weapon where the offenders were masked, ordered the bank employee and customers to get to the floor.
[25] The Defence also relies on R. v. Ahmed [2003] O.J. No. 5604, where a sentence of 3 years in addition to four months presentence custody. The offender was a 23 year old Somali homeless person on probation for assault causing bodily harm.
[26] Finally, in R. v. Warford [2002] O.J. No. 4740, the court approved a joint submission on sentence of four years for an offender who pled guilty to two counts of robbery. He gave the teller a note asking for money and told her he had a gun. The offender had a criminal record for robbery and break and enter.
8. Time Spent in Pre-trial Custody
[27] It is agreed that Mr. Sheikh-Hussein should receive credit for the time he spent in Pre-Sentence custody at the rate of 1.5:1. Mr. Sheikh-Hussein has not had access to adequate programs and has suffered adverse health effects while he has been in custody.
[28] He has spent 673 days in pre-sentence custody. The total credit is therefore 1010 days.
9. Reasons for Sentence
[29] I accept the Crown’s contention that in cases involving armed robbery with an imitation firearm, general deterrence, denunciation and protection of the public are paramount considerations. Mr. Sheikh-Hussein must therefore be sentenced to a term that reflects the seriousness of this offence. Moreover, Mr. Sheikh-Hussein committed this offence while on probation.
[30] However, I believe that rehabilitation is also a factor to be considered in this case given Mr. Sheikh-Hussein’s age and desire to change his ways.
[31] I believe the appropriate global sentence, considering the legal principles of sentencing, the offence, the number of previous convictions, the circumstances of the commission of the offence, the difficulties Mr. Sheikh-Hussein has been through in his life, and the aggravating and the mitigating factors, is a sentence of four years and ten months to be followed by the maximum three years’ probation.[^1]
[32] This means that Mr. Sheikh-Hussein will continue to serve a custodial sentence and upon his release will be supervised for three years. If he is serious about his desire to change, this will enable him to do so while at the same time ensuring that his actions in the community are monitored for as long as possible.
[33] The terms of his probation shall include the following:
a) He is not to attend the CIBC bank at 2014 located at 201 Lloyd Manor Drive where this offence took place;
b) He is to report once a week for the first year, to his probation officer and as often as the probation officer deems necessary, thereafter;
c) He is to notify his probation officer of his residence and is not to move without prior approval from his probation officer;
d) He is to seek employment or school opportunities and report to the probation officer regarding his progress;
e) He is to provide any necessary releases to enable his probation office to monitor his progress and counselling;
f) he is to remain in his residence between 11 pm and 7 am except for emergency medical attention; and
g) he is to attend counselling for alcohol addiction.
[34] From this global sentence is deducted 1.5 days’ credit for every day in adult pre-sentence custody which amounts to 1010 days.
[35] I note that this sentence is significantly higher than any sentence Mr. Sheikh-Hussein has received in the past.
[36] I further grant the Crown’s request for a weapons prohibition order pursuant to section 109 of the Criminal Code, R.S. 1985, c. C-46 for life, and a DNA order pursuant to s. 487.051 of the Criminal Code.
[37] I am directing that a copy of this decision be provided to the correctional authorities.
Thorburn J.
Released: May 13, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
MOHAMED SHEIKH-HUSSEIN
Defendant
REASONS FOR SENTENCE
Thorburn J.
[^1]: The sentence is broken down as follows: Four years for robbery. One year consecutive for use of an imitation firearm. One year concurrent for threatening death. Six months consecutive for failure to comply with the first probation order and six months concurrent for failure to comply with the second probation order. Four years ten months after taking into account the totality principle.