Court and Parties Information
DATE: 2016-06-16 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – ERAN SHOMONOV
Counsel: Frank Schembri, for the Crown Dennis Morris, for Eran Shomonov
Heard: June 16, 2016
Before: McCombs J.
Reasons for Sentence
Introduction
[1] On March 18, 2013, at 8:39 p.m., a 911 call came from a boxing club in an industrial strip mall in North York. People in the club had heard a loud bang next door, and found a hole in the wall. They looked outside and found blood leading from the locked front door of the next-door unit (unit B).
[2] Police spoke to the landlord who told them that Mr. Shomonov was renting unit B. Police called the cellphone number provided by the landlord and spoke to Mr. Shomonov who was being treated at a local hospital for a wound to his hand. When police interviewed him, he initially claimed to have accidentally shot himself with a nail gun while doing renovation work in the unit. Police didn’t believe him. Further investigation revealed that Shomonov had accidentally discharged a firearm and had shot himself in the hand.
[3] Police conducted a warrantless search of Unit B because of exigent circumstances, mainly to be sure there was no-one inside unit B who had been injured. A subsequent judicially-authorized search led to the discovery of two unregistered firearms, ammunition, 90 grams of marijuana, and $18,000 in cash.
[4] Mr. Shomonov is before the court for sentence, having been convicted of the following offences: two counts of unauthorized possession of semi-automatic handguns together with readily accessible ammunition contrary to s. 95(1) of the Criminal Code (counts 1 & 2); one count of careless use of a firearm (count 5), and one count of the reduced charge of simple possession of marijuana under count 7. Count 7 was a charge of possession of marijuana for the purpose of trafficking but the Crown correctly and fairly conceded that the evidence did not support that charge. Counts 3 & 4 were stayed under the rule against double punishment commonly known as the Kienapple principle. Mr. Shomonov was acquitted of possession of the proceeds of crime, i.e. the $18,000 in cash (count 6). The Crown fairly conceded that the cash could not be connected to the commission of a crime. The money has been ordered returned to Mr. Shomonov.
Personal Circumstances of the Offender
[5] Mr. Shomonov is 29 years old. He has no prior criminal record. He came to Canada from Israel at age 12. He is a hard-working and resourceful entrepreneur who has developed legitimate and successful businesses. The very impressive letters of support show that he has been a law-abiding person whose entrepreneurial skills have contributed to society. Although he challenged the admissibility of the evidence on a pre-trial Charter motion, once the evidence was ruled admissible: R. v. Shomonov (2016) O.J. 1604, he instructed his counsel to work out an agreed statement of fact with the Crown and he has now fully admitted his factual guilt. His very credible expression of remorse is entitled to be considered as a factor in mitigation of sentence.
[6] One factual issue bears mentioning. Obviously, possession of such a large amount of cash would raise suspicions that the cash was the proceeds of crime. However, the expanded record before me on sentencing satisfies me that it is believable that Mr. Shomonov bought the guns and ammunition for his protection. It goes without saying that it was beyond foolhardy to keep that much cash on hand in a unit in a strip mall. And Mr. Shomonov’s decision to illegally buy handguns and ammunition to protect himself from robbery was not only foolish but constituted serious criminal conduct.
[7] To be clear, I do not consider the fact that he had the guns for protection to be a mitigating factor per se, but it is a relevant consideration when evaluating where his conduct belongs on the spectrum of criminal conduct captured by s. 95 of the Criminal Code. In this regard, I am guided by the observations of Doherty J.A. in R. v. Nur 2013 ONCA 677, 117 O.R. (3d) 401 at paragraphs 51 & 52. I will mention this issue again later in these reasons.
[8] I return to mention the letters of support. Judges often receive such letters during sentencing hearings, but the letters in this case are especially impressive. Without detailing each of them, I say only that each letter is a testament to Mr. Shomonov’s character, his concern and love for his siblings and especially for his mother, his concern for others, and his quiet generosity. Even his landlord, the owner of the strip mall where the firearm was discharged, stands behind Mr. Shomonov and has supported him by allowing him to remain as a tenant in unit B. The owner of the boxing club next door also attests to Mr. Shomonov’s good character and continues to be supportive. Many people depend on Mr. Shomonov and respect him despite his involvement in these crimes.
[9] I am satisfied that the people who know him best, including family, friends, and business associates, were all shocked to learn of his involvement with firearms.
General Sentencing Principles
[10] The sentencing principles are set out in s. 718 of the Criminal Code and related provisions. 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. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentence should be increased or reduced in accordance with relevant aggravating and mitigating circumstances; the sentence should be similar to sentences imposed in similar circumstances for similar offenders. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate, and all available sanctions other than imprisonment should be considered.
Appropriate Sentence for Firearms Offences
[11] It is well-established that when it comes to possession of loaded restricted handguns, the overriding principles of sentencing must be denunciation and deterrence. While there is no longer any three-year mandatory minimum sentence of imprisonment for these offences, they remain very serious and almost always require the imposition of a substantial period of imprisonment, even for first offenders.
[12] Where the offender is an outlaw who carries a loaded firearm as a tool of his or her trade, a penitentiary sentence of 3 or more years is generally appropriate: R. v. Nur 2015 SCC 15, [2015] 1 S.C.R. 773, para. 82, adopting the language of Doherty J.A. in the Court of Appeal decision, supra. Where, as in this case, the offender is not in possession of the firearms and ammunition as tools of his trade, a somewhat lesser sentence may be appropriate, particularly for a first offender.
[13] In this case, I have found that Mr. Shomonov was in possession of the guns and ammunition for his protection from potential robbery. With that said, his crimes are nevertheless very serious. They were “true crimes” in the sense meant by Doherty J.A. in para. 52 of Nur, supra, (C.A.). In these circumstances, the law is clear that a substantial period of imprisonment is required.
Position of Crown and Defence
[14] The Crown position is that a penitentiary sentence is justified despite the mitigating factors. Mr. Schembri points out, quite rightly, that someone could have been seriously injured or killed as a result of Mr. Shomonov’s conduct. He submits that the principles of denunciation and deterrence require the imposition of a penitentiary sentence.
[15] Mr. Morris argues on behalf of Mr. Shomonov that given the many mitigating factors that I have identified, this case is sufficiently exceptional that a conditional sentence of imprisonment would adequately reflect the governing principles of sentence. He did not press the point in his oral submission, but argued in the alternative that a mid-range reformatory sentence should be imposed.
Appropriate Sentence
[16] The imposition of sentence is very much a fact-driven exercise. Every case must be decided with regard to the unique circumstances of the case. Here, the offender is a person of otherwise outstanding character who is genuinely remorseful and, I find, highly unlikely to ever commit crimes in the future. On the other hand, as I have stated, firearms are a very serious safety concern and the courts have a duty to impose sentences that promote respect for the law and the protection of society.
[17] After weighing all of the factors, both aggravating and mitigating, I have concluded that the interests of justice would be served by the imposition of a reformatory sentence in the upper range. In my view, a sentence equivalent to 21 months imprisonment will properly reflect the appropriate degree of denunciation and deterrence. That sentence is in the lower end of the appropriate range of sentence because of the mitigating factors that I have mentioned.
Credit for Time Served and for Restrictions while on Bail
[18] Mr. Shomonov was in custody for four days before being released on March 22, 2013 on house arrest. That house arrest was varied on consent on March 28, 2013 to allow him to work. On February 5, 2014, the house arrest condition was deleted on consent, and substituted with a 9:30 curfew. Then on November 13, 2014, again on consent, the curfew was changed to 11:30. Finally, on February 5, 2015, the bail was again varied on consent and the curfew deleted entirely. After that he could be out of his residence but only in the presence of a surety.
[19] The question to consider is how much credit should be given in the circumstances. I have given the matter careful consideration. He is entitled to credit on a 1.5 to 1 basis for the four days he spent in custody. That is equivalent to one week. Then he had house arrest conditions with an exception for work for just under a year. As time passed, he was allowed fewer restrictions. He has been on bail without incident for more than three years.
[20] It is appropriate that I consider the time that Mr. Shomonov spent on house arrest. In doing so, I have been guided by the principles identified by the Ontario Court of Appeal in R. v. Downes, 2006 ONCA 3957, [2006] O.J. No. 555. The amount of credit to be given is in the discretion of the court. The house arrest was not as restrictive as it might have been. He was allowed to be out of his residence for work. After a year, the house arrest condition was replaced with a recognizance with conditions including a curfew. In all the circumstances, I give him credit for 5 weeks of imprisonment for the three years he has been on bail.
[21] Having regard to his entitlement of one week’s credit for time spent in custody, the otherwise appropriate sentence of 21 months will be reduced by two months.
Conclusion
[22] The indictment shall be endorsed as follows: Sentenced to 21 months imprisonment less two months pre-trial credit. Total sentence to be served: 19 months.
[23] The sentences on the various counts shall be broken down as follows:
- Possession of the firearms (counts 1 & 2) 21 months concurrent less credit for time served of two months for a total sentence of 19 months imprisonment.
- Careless use of a firearm (count 5), six months concurrent.
- With respect to the finding of guilt for simple possession of marijuana (count 7), 15 days concurrent.
Ancillary Orders
[24] In addition, the following ancillary orders shall issue: a) Forfeiture order pursuant to s. 491(1) of the Criminal Code with respect to the guns and ammunition. b) Lifetime weapons prohibition under s. 109 of the Criminal Code. c) Pursuant to s. 487.051(3) of the Criminal Code, an order in Form 5.04 to have samples of bodily substances taken for purposes of forensic DNA analysis.
J. D. McCombs J. June 16, 2016
