R. v. Jean, 2015 ONSC 9
COURT FILE NO.: 12-A11799
DATE: 2015/01/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
FRANTZY JEAN
Accused
Tim Wightman, for the Crown
Dominique D. Smith, for the Accused
HEARD: December 2, 2014
SENTENCED: January 20, 2015
REASONS FOR SENTENCE For possession
of a loaded restricted handgun
R. Smith J.
A. Circumstances of Offences
[1] The offender was convicted of three counts, namely possession of a restricted weapon, possession of a loaded restricted firearm without a licence and possessing a firearm knowing that it had been obtained by the commission of a criminal offence. The essence of the offences was his having possession of a loaded 9mm Beretta semi-automatic handgun.
[2] A 9mm Beretta handgun, loaded with eleven rounds of ammunition, was found stored in a shoe box under the bed in the second floor bedroom of the townhouse occupied by the offender’s girlfriend. The Beretta handgun was stolen from the US military and the jury found that the offender was in possession of the loaded restricted firearm. Mr. Jean was acquitted of Count #2 as they had a reasonable doubt as to whether he knew that 15 round magazine required a licence permitting its possession.
B. Offender’s Circumstances
[3] Mr. Jean is currently thirty years of age and is the father of two children and has assisted with raising three older children of his girlfriend, Katherine Enticknap.
[4] Ms. Enticknap testified that he was very supportive in assisting her with the raising of the two younger children, Frantzy Jr. who is three years of age and Marcellus who is approximately two years of age. Frantzy Jr. has heart problems and needs special care.
[5] Under cross examination, Ms. Enticknap testified that she wasn’t aware of the offender’s extensive criminal record and she also wasn’t aware that he had been involved in selling crack cocaine. She also stated that she was not aware that the offender had stored a loaded restricted firearm under her bed, where she spent time with her two very young children.
[6] The offender has an extensive criminal record which is set out in Exhibit 1 to this sentencing hearing.
[7] The accused was arrested on July 31, 2012 and was granted bail on May 10, 2013. He was arrested again on July 9, 2013 by an undercover officer and pleaded guilty on September 9, 2013 to having possession of a prohibited substance for the purpose of trafficking and received time served with a credit for 302 days in custody.
[8] On April 14, 2014, the accused was granted bail and this trial commenced on April 15, 2014. On May 2, 2014, the accused was convicted on these counts and his bail was revoked and he has remained in custody since that date.
[9] Both Crown and Defence agreed that the accused has been in pretrial custody for 16 months and 16 days prior to December 2, 2014 on these charges. If a credit of 1.5 to 1 is given, the accused would receive credit for approximately 25 months time served.
C. Criminal Record
[10] Mr. Jean’s criminal record is as follows:
a) December 21, 2001 robbery, unauthorized possession of a prohibited or restricted weapon, failing to comply with a recognizance. He received a sentence of 18 months in custody concurrent.
b) On December 1, 2004, he was convicted of uttering a forged document, unauthorized use of a credit card data, obstructing a police officer, two counts of assaulting a police officer, two counts of unauthorized use of credit card data, failure to appear and forgery which he received 1 day plus probation for 16 months.
c) On December 8, 2004, he was convicted of obstructing justice. Received 6 months plus 12 months of probation.
d) On January 24, 2005, he was convicted of obstructing a peace officer. Received a suspended sentence and probation for 15 months with 30 days pre-sentence custody.
e) On June 16, 2006, convicted of two counts of failure to comply with recognizance, mischief under $5000, resisting arrest, failure to comply with probation order. Received thirty days, suspended sentence.
f) On October 5, 2006, he was convicted of failing to comply with a probation order, failing to comply with recognizance and attempted obstruction of justice. He received 28 days on each count, concurrent.
g) On February 20, 2008, he was convicted of obstructing a peace officer, two counts of possession of Schedule II substance and failing to attend court for which he received a suspended sentence and probation with 45 days in pre-sentence custody.
h) On June 19, 2008, he was convicted of unauthorized use of a credit card and received a suspended sentence and 45 days in pre-sentence custody.
i) On August 11, 2009, he was convicted of unauthorized use of credit card data and failure to comply with recognizance and received a suspended sentence with 93 days pre-sentence custody.
j) On November 30, 2009, he was convicted of failing to appear; received 30 days consecutive.
k) On December 8, 2009, he was convicted of possession of property obtained by crime over $5000, obstructing a peace officer and failing to comply with recognizance for which he received 2 months in jail plus 67 days of pre-sentence custody.
l) On May 1, 2012, he was convicted of failing to comply with recognizance and received 1 day and 50 days pre-sentence custody.
m) On September 9, 2013, he was convicted of trafficking in a Schedule I substance and possession of a Schedule 1 substance for the purpose of trafficking and he received a 302 day sentence.
D. Positions of Crown and Defence
[11] The defence seeks a sentence of three to four years in custody with credit on a 1.5 to 1 basis for pre-sentence custody. He further requests that, if the remaining time to be spent in prison is near two years, that his sentence exceed the two year time so that he would serve the time in a federal penitentiary.
[12] The Crown submits that a sentence of five years in custody is appropriate, less credit for pre-trial custody. The Crown further submits that the credit should not be at the rate of 1.5 to 1 because the accused was convicted of an assaulting a fellow inmate while in pre-sentence custody. The assault was recorded on a video which was played as part of his sentencing hearing. The Crown submits that as a result of the offender’s behaviour, it would be unlikely that he would receive one third remission for good behaviour. The Crown submits that such a sentence is required to fulfill the principles of deterrence and denunciation.
E. Mitigating Factors
[13] The following are mitigating factors for Mr. Jean:
(a) The offender has two young children and his common-law spouse testified that he assisted her with caring for the children. However, this evidence is contrary to the evidence present at trial, namely that he only stored some of his clothes in the bedroom and would sleep on the downstairs couch, coming in in the early morning hours. In addition, the offender has not been paying any child support for any of his two children and fathered another child at the same time that Frantzy Jr. was born.. As a result, I conclude that his assistance in caring for the children was not extensive.
F. Aggravating Factors
[14] The following are the aggravating factors:
(a) The offender has a lengthy 3 page criminal record, including recent offences for drug trafficking, failing to comply with recognizance, breach of probation, obstructing peace officers, failing to appear, credit card offences and two counts of robbery.
(b) The offender pleaded guilty to a further offence of possession for the purpose of trafficking on Sept 10, 2013 while he was on bail on these charges.
(c) The offender pleaded guilty to assault on a fellow inmate while he was in custody awaiting his sentence on these charges.
(d) The conviction involved possession of a loaded restricted weapon, which was loaded with 11 rounds of ammunition and was stored in an area where two very young children were cared for by their mother. This was a dangerous situation.
G. Principles of Sentencing
[15] The principles of sentencing are set out in s.718 of the Criminal Code. The applicable principles in this case are specific and general deterrence as well as denunciation of the offender’s conduct of possessing a restricted, loaded semi-automatic handgun.
H. Case Law
[16] In R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, the Ontario Court of Appeal held that the 3 year minimum sentence set out in the Criminal Code for possession of a restricted weapon or ammunition violated the Charter of Rights and Freedoms and that the infringement could not be justified by s.1 of the Charter. Notwithstanding that the minimum sentence of 3 years is not binding at para.107 of Nur, the Court of Appeal, stated that the principles for sentencing on a conviction of the Criminal Code stressed denunciation and deterrence and that the mitigating factors took on a less significant role when fixing the appropriate penalty. At para. 206 of Nur, the Court of Appeal stated: “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.” The Court further added that the accused “could well have received a sentence of three years” for such a crime.
[17] In R. v. Browne, 2014 ONSC 4217, [2014] O.J. No. 3370, the accused was sentenced to 3½ years in prison for possessing a loaded prohibited firearm. In this case, there was also no evidence that Browne used the firearm; the firearm was not traced to other offences; Browne expressed remorse and pleaded guilty; he had a substantial gap in his criminal record; and he had the support of his family and child responsibilities, employment and rehabilitative prospects. In this case, there is no evidence before me that the firearm was used by Mr. Jean and it was not traced to other offences. However, in this case there is no gap in his criminal record, which has continued during his bail on these charges and there is no evidence before me of any employment or rehabilitative prospects. Mr. Jean is not a youthful offender as he is now currently 30 years of age and has an extensive three-page criminal record.
[18] In R. v. Lawson, 2012 ONSC 1305, [2012] O.J. No. 2211, T.M. Dunnet J. sentenced an offender for possessing a restricted firearm and ammunition to 40 months’ and 5 days’ imprisonment. However, in the Lawson case, the accused had a dated record, no breaches of bail conditions, or offences for robbery, failing to comply with recognizances and breaches of probation.
[19] In R. v. Duale, [2014] O.J. No. 3030, the accused was convicted of being in possession of a prohibited firearm with a magazine capable of holding 13 rounds while he was subject to a firearms prohibition. There was evidence of shooting of the firearm and much more dangerous conduct than that before me. However, the accused in that case was only 20 years of age. He was sentenced to 4 years in prison for possessing a loaded firearm concurrent with each of the other firearms offences. This case is very similar to the case before me with the exception that the accused, Mr. Duale, was much younger than Mr. Jean and appears to have had a much shorter criminal record.
[20] In R. v. Whyte, [2014] O.J. No 4701, a sentence of 4 years in prison was imposed for similar offences to those that the offender has been convicted of in this case.
[21] The Crown seeks a sentence of 5 years. The defence submitted that a sentence of 3 to 4 years was appropriate considering both the mitigating and aggravating factors. In view of the case law, the seriousness of possessing loaded restricted firearms, the dangerous storage of the loaded firearm with young children involved, and the lengthy criminal record of the accused, I find that a sentence of 4½ years should be imposed.
I. Pre-Sentence Custody
[22] The offender has spent 16 months and 16 days in pre-sentence custody on these charges. In the R. v. Summers, 2014 SCC 26, [2014] S.C.J. No. 26, decision, the Court of Appeal held that an offender was entitled to a credit of 1.5 to 1 for time spent in pre-sentence custody due to the fact that the offender would not be entitled to earned remission for good behaviour while in prison for the period of time in custody. In this case, the Crown objects to granting a 1.5 to 1 credit because of the accused’s bad behaviour while in prison. He has been convicted of assaulting another inmate while in custody and he has committed a further offence of trafficking while on bail for these charges and as a result, the accused should not be entitled to a 1.5 to 1 credit for the pre-sentence time.
[23] The defence submits that the accused’s involvement in the assault, on a fellow inmate, was relatively minor. The offender was the third man into the fight and threw only a couple of punches. During a subsequent assault of the same inmate the offender offered the victim a glass of water. I did not have evidence of this other than the submission from counsel which I accept.
J. Sentence and Reasons
[24] Given the accused’s extensive criminal record, including numerous attempts to obstruct justice and his lack of cooperation with the authorities, his commission of a further offence while he was on bail awaiting trial on these charges and his conviction while in prison of assaulting a fellow inmate, I find that it is unlikely that he will earn the full 1/3 remission for good behaviour. As a result, I will give the accused credit for pre-sentence custody at the rate of 1.5 to 1 but reduce this amount by two months.
[25] The offender is therefore entitled to a credit for the time served before sentence at the rate of 1.5 to 1, but the credit is reduced by two months due to the offender’s bad behaviour during pre-sentence custody. The offender has spent 16 months and 16 days in pre-sentence custody to December 2, 2014. Adding a further 49 days to the present date brings this amount to 18 months and 3 days (multiplying this by 1.5) results in a credit rounded to 27.5 months less 2 months for bad pre-sentencing behaviour, leaving 25.5 months of credit for time served. However, 60 days (2 months) of the presentence custody was allocated to his sentence on the assault charge while he was in jail and so the total credit for pre-sentence custody of 23 ½ months.
K. Disposition
[26] Mr. Jean is sentenced to four and one half years in prison with a credit for pre-sentence custody on a 1.5 to 1 basis less two months, of 23.5 months leaving 2 years and 6.5 months remaining to be served in prison by the offender.
L. Ancillary Orders
[27] In addition, the offender is prohibited, for life, from possessing any weapons pursuant to s.109 of the Criminal Code and he is required to provide a DNA sample.
R. Smith J.
Delivered orally on: January 20, 2015
CITATION: R. v. Jean, 2015 ONSC 9
COURT FILE NO.: 12-A11799
DATE: 2015/01/20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
FRANTZY JEAN Accused
REASONS FOR SENTENCE
R. Smith J.
Delivered orally on: January 20, 2015