CITATION: R. v. Nsiah, 2017 ONSC 769

COURT FILE NO.: CR-16-10000277-0000

DATE: 20170131

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JEANGAT NSIAH

Ryan Wilson, for the Crown

Roots Gadhia, for Mr. Nsiah

HEARD: January 9 and 19, 2017

R.F. GOLDSTEIN J.

REASONS FOR SENTENCE

1. Overview

[1] Mr. Nsiah pleaded guilty to three counts:

• Possession of a loaded restricted firearm together with readily accessible ammunition where he did not have a permit or licence, contrary to s. 95(1) of the Criminal Code;

• Breach of recognizance contrary to s. 145 of the Criminal Code; and,

• Breach of a weapons prohibition contrary to s. 117 of the Criminal Code.

[2] He now comes before the Court for sentencing.

2. The Facts

(a) Circumstances of the offence

[3] On Friday July 3 2015 members of Toronto Police executed a search warrant at Mr. Nsiah’s residence. They arrested him in his vehicle prior to executing the warrant. They seized a key from him. They used the key to obtain entry into his residence. The police found a .22 revolver with 6 rounds of ammunition on a shelf in his bedroom closet. They also found another 6 rounds of 12-gauge shotgun ammunition and nine rounds of .22 ammunition in a gym bag. The police also found 50.42 grams of marijuana in his room, a scale, and $1780 in cash. The police found a further 3.53 grams of marijuana and $650 in cash when they arrested him in his vehicle. He has been in custody since his arrest on these charges.

(b) Circumstances of the offender

[4] Mr. Nsiah is 23 years old. He comes from pro-social circumstances. His parents immigrated from Ghana but Mr. Nsiah was born in Canada. His parents raised him together and have worked steadily. His two sisters have built solid, pro-social lives for themselves and are productive members of the community. Somehow Mr. Nsiah fell off a proper path despite good antecedents. He completed Grade 11 but left school before graduating and went to work at a food-packing plant in Brantford. Unfortunately, this unstructured lifestyle, which clearly included a poor choice of friends, led him to criminal activity. He was convicted in 2014 of assault, for which he received a suspended sentence and probation. He was on probation – which only had another three weeks to run – when he committed this offence. In February 2015 he was convicted of obstructing a police officer and breach of probation, for which he received credit for time served of 6 days in custody plus 1 year of probation.

[5] Mr. Nsiah was on bail for possession of a schedule 1 substance for the purpose of trafficking when he committed these offences. He later pleaded guilty and received a sentence of 5 months and 11 days and credit for 13 days of pre-sentence custody.

[6] Thus, at the time of the offence Mr. Nsiah was on a recognizance that included a term that he was not to possess a firearm or ammunition. He was also on a term of probation to keep the peace and be of good behaviour.

(c) Impact on the victim and the community

[7] As has been repeatedly observed in sentencing decision after sentencing decision, the possession of illegal handguns is a scourge on our community. These weapons have but one purpose, which is to kill other human beings. Illegal handguns like this one are not used for sport, or target shooting, or hunting. They are used by criminals to intimidate and to kill. There is, of course, no evidence that Mr. Nsiah used this particular handgun to commit any particular crime, but the mere existence of this weapon is in itself worthy of condemnation.

3. Positions of the Crown and Defense

[8] Mr. Wilson, for the Crown, argues that an appropriate sentence is 4 years less credit for pre-sentence custody. He suggests that the time should be allocated so that Mr. Nsiah is sentenced to 3 to 3 ½ years on the firearms charge and 6 months to 1 year on the firearms prohibition charge. He suggests a concurrent sentence on the breach of recognizance charge. He also urges making a s. 109 order, a forfeiture order, and a DNA order. He is not opposed to granting extra credit for the time served on lockdown but suggests that it be limited as there is not enough direct evidence of the effect on Mr. Nsiah.

[9] Ms. Gadhia for her part suggests that Mr. Nsiah should spend 3 years in custody, with credit for pre-trial custody such that it would mean another 11 months in custody from today. She calculates the time as follows:

[10] As of January 19 2017, the day of sentencing submissions, Mr. Nsiah had spent 14 months in pre-trial custody or 566 days. Of that time, five months or 150 days must be attributed to the sentence he was serving. That leaves him with 416 days in custody (about 1 year, 1 month, and 21 days). Of those 416 days, Mr. Nsiah spent 268 days in full or partial lockdown at the Toronto South detention facility. She therefore argues that Mr. Nsiah should receive credit at 2:1 for those 268 days and credit at 1.5:1 for the remaining 148 days. Thus, she argues, the 416 days Mr. Nsiah had spent in custody to January 19 should give him a total credit of 758 days or 25 ¼ months. That time should be subtracted from the three-year sentence she urges, which would leave him another 337 days to serve, or just over 11 months.

4. Case Law

[11] Crown counsel relied on R. v. Brown, 2015 ONCA 361 as authority for the proposition that while individual deterrence and rehabilitation are the primary sentencing principles when dealing with youthful first offenders, as the offence becomes more serious those principles must eventually yield to denunciation and general deterrence as important sentencing factors. He points to the general rule that offences involving guns are very serious and require exemplary sentences: R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont.C.A.).

[12] Crown counsel also relies on R. v. Marshall, 2015 ONCA 692. In that case, after a trial the offender was convicted of possession of a loaded prohibited firearm. There was evidence that the offender was present in an apartment with other accused persons who were involved in the drug trade. The Court of Appeal upheld a 3 ½ year sentence.

[13] Crown counsel submitted R. v. Slack, 2015 ONCA 94. The offender was convicted after a trial of possessing a loaded firearm. He abandoned the gun in an unlocked car and left the engine running, a situation of obvious extreme danger. He had a very significant and serious criminal record, with some 18 convictions. Some of those convictions were for firearms offences. He was on a firearms prohibition at the time of the offence. The trial judge imposed an 8-year sentence. The Court of Appeal upheld the sentence, although it credited the offender for more time spent in custody.

[14] Ms. Gadhia relies on R. v. McKenzie, 2016 ONSC 5025. In that case, the offender was found guilty of possession of a loaded prohibited handgun in his house. At the time he was on a court order that prohibited him from possessing any weapons. My colleague K. Campbell J. sentenced him to 3 years imprisonment. The sentence was divided into 2 ½ years on the possession charge, and another 6 months on the breach charge.

[15] Ms. Gadhia also relies on R. v. Peterkin, 2013 ONSC 2116, another decision of my colleague K. Campbell J. The offender was stopped and investigated by the police. In the course of a pat-down search he was found in possession of a loaded handgun, some crack-cocaine (which Campbell J. found was for the purpose of trafficking) as well as proceeds and marijuana. Campbell J. sentenced the offender to 4 years. The combination of a gun and crack cocaine was highly aggravating. The Court of Appeal dismissed the appeal, which was only brought in relation to a Charter ruling: R. v. Peterkin, 2015 ONCA 8.

5. Mitigating and Aggravating Factors

[16] In my view, the most important mitigating factor here is Mr. Nsiah’ guilty plea and his expression of remorse. Mr. Nsiah read a letter to the Court that was entered into evidence. In his letter he expressed regret and remorse for his criminal acts, an acknowledgment that he has made poor choices, and shame for the hurt and trouble that he has brought upon his family. The letter is handwritten and heartfelt. I accept it as a genuine expression of remorse.

[17] I have also reviewed the letters of support filed by the members of his family and reviewed the plan going forward by Mr. Nsiah’s sister. These letters are an important mitigating factor as they show that Mr. Nsiah has family support, which will hopefully assist him in the rehabilitative process.

[18] The harsh conditions of lockdown are also a mitigating factor. Crown counsel very properly and fairly brought to my attention R. v. Duncan, 2016 ONCA 754. In that case the Court of Appeal noted that a sentencing judge can give credit for especially harsh jail conditions as a mitigating factor provided that there has been appropriate evidence filed. Of course, this makes sense – the weight of authority in this province has long been that a person under very strict house arrest is entitled to some credit in sentencing: R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.). It would be entirely unjust that a person who has lived in the relative comfort of home can use that as a mitigating factor but that a person who has lived under harsh conditions in jail cannot. In this case, Ms. Gadhia has filed material relating to the number of lockdowns at the Toronto South Detention Centre. Mr. Nsiah has been in custody since July 4, 2015. That is a period of 566 days. During that period there have been 246 days of partial or full lockdowns. Of the 566 days, 150 must be attributed to a sentence that Mr. Nsiah is serving.

[19] During a lockdown the inmates are more or less confined to their cells. They do not have the opportunity to shower, exercise, socialize, or have access to the programs that will assist them when they re-integrate back into the community. I note that Mr. Nsiah has taken advantage of some of these programs. In other words, the lockdowns represent a modern form of the harsh Dickensian conditions that motivated the Victorian movement towards prison reform. The lockdowns are a regressive form of punishment that is represents the opposite of an enlightened penal regime. On an individual level, it is notable that many of the people in the Toronto South – a remand centre – are charged with an offence but presumed innocent.

[20] In my respectful view, a prisoner who experiences lockdown is entitled to remission beyond the 1.5:1 credit for pre-sentence custody that is routinely granted. I would not use a mathematical formula. The Court of Appeal in Downes did not attempt to create a formula, leaving it to the discretion of sentencing judges.

[21] The principle aggravating factors here are the nature of the offence and Mr. Nsiah’s criminal record. In 2014 Mr. Nsiah was convicted of assault and received a suspended sentence and probation. More seriously, in 2015 he was convicted of possession of a schedule I drug for the purpose of trafficking. He received a sentence of 5 months, and 11 days (after credit for 13 days of pre-sentence custody). This is the sentence that Mr. Nsiah has been serving that I referred to earlier. This drug offence was committed prior to the gun offence although he was sentenced while in custody.

6. Principles of Sentencing

[22] The key principles of sentencing in any gun offence are general deterrence and denunciation: R. v. Nur, 2013 ONCA 677, affirmed, 2015 SCC 15, [2015] 1 S.C.R. 773. Given Mr. Nsiah’s youth and his relatively minor criminal antecedents (leaving the drug trafficking offence aside) the principles of rehabilitation and specific deterrence must also play a role.

7. Ancillary Orders

[23] In my view, a s. 109 order for 10 year is appropriate. As this is a secondary designated offence, I must determine whether a DNA sample should be taken. In my view, it should. Mr. Nsiah has, regrettably, started down a criminal path. I certainly hope that he will change his ways, and I accept his heartfelt apology and statement as sincere and sincerely meant. That said, there is the unfortunate possibility that he may not be able to help himself. A DNA sample may well assist law enforcement in the future in the unfortunate event that Mr. Nsiah finds himself in trouble again. There will also be forfeiture of the gun and the proceeds.

8. Final Decision

[24] In my view, an appropriate global sentence is 3 years before taking into account pre-sentence custody. This sentence reflects the principles of general and specific deterrence, while still having regard to Mr. Nsiah’s rehabilitative prospects. It also takes into account Mr. Nsiah’s guilty plea, his apology, and his plan going forward for the future. It is within the range for offences of this nature.

[25] I agree with my colleague K. Campbell J. that the weight of authority suggests that an additional period of time should be imposed on an offender who commits a gun crime while on a weapons prohibition. This time should be consecutive. See R. v. McKenzie, supra, at paras. 27-28.

[26] I therefore divide the sentence as follows: 2 ½ years on the possession of the weapon charge, and 6 months consecutive on the breach of the weapons prohibition charge. I would also sentence him to 30 days on the breach of recognizance charge. That charge will run concurrent to the possession of a weapon charge.

[27] Mr. Nsiah has, as of today, served 427 days in custody attributable to these charges. At the rate of 1.5:1 that means he will receive credit for 640 days, or just under 21 ½ months. That would leave him with another 455 days to serve, or just over 15 months.

[28] As noted, I agree with Ms. Gadhia that Mr. Nsiah is entitled to credit for time served in lockdown but I would not give it a specific ratio. Parliament has capped the numerical credit that an offender can receive at 1.5:1 and the Supreme Court has found that amount to be constitutional. I can, however and will treat it as a significant mitigating factor and I do. In this case, I would grant Mr. Nsiah credit for an additional 4 months. Accordingly, Mr. Nsiah will serve a further 11 months in custody.

R.F. Goldstein J.

Released: January 31, 2017

CITATION: R. v. Nsiah, 2017 ONSC 769

COURT FILE NO.: CR-16-10000277-0000

DATE: 20170131

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JEANGAT NSIAH

REASONS FOR SENTENCE

R.F. Goldstein J.