COURT FILE NO.: CR-16-10000-466-00000-0000
DATE: 20180510
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SAAD HASSAN
Counsel: Ellen Weis for the Crown Angela Ruffo for the Applicant
HEARD: March 28, 2018
REASONS FOR SENTENCE
G. DOW, J.
[1] Saad Hassan proceeded to trial with jury on May 13 to May 25, 2017. The jury reached a verdict on May 25, 2017 that Saad Hassan was guilty of:
robbery of Golfam Fathi contrary to Section 344 of the Criminal Code;
use of an imitation firearm while committing robbery of Golfam Fathi contrary to Section 85(2)(a) of the Criminal Code;
attempted robbery of Kelly-Anne Seymour-Seaward contrary to Section 344 of the Criminal Code;
use of an imitation firearm while committing robbery contrary to Section 85(2)(a) of the Criminal Code; and
threatening bodily harm to Kelly-Anne Seymour-Seaward contrary to Section 264.1(1)(a) of the Criminal Code.
Background
[2] The circumstances giving rise to the guilty verdicts involve Saad Hassan’s activity on the evening of June 19, 2013. According to Golfam Fathi, she was invited into Saad Hassan’s car while walking on Sherbourne Street near Wellesley Street. They proceeded to a dark alley where Saad Hassan pointed what looked like a real gun at her and demanded her purse. She complied and was then able to exit the car.
[3] Earlier that evening, Kelly-Anne Seymour-Seaward testified she had been working as a prostitute just after midnight on the north west corner of Jarvis and Gerrard Street. Saad Hassan stopped, they spoke, and she got into his car. They proceeded to a nearby parking lot where Saad Hassan pointed what looked like a real gun at her and demanded her money. She responded that she did not have any. Saad Hassan then demanded her package of cigarettes which she refused to provide. Saad Hassan asked if she was willing to get shot over a package of cigarettes. Kelly-Anne Seymour-Seaward then got out of the car and Saad Hassan drove away.
[4] Saad Hassan was apprehended eastbound on Danforth Ave east of Coxwell Avenue by police after the complainants reported what had occurred to them. They provided the police with a description of Saad Hassan’s 1998 blue Honda Civic which was missing its front license plate. Golfam Fathi’s wallet including identification and an imitation hand gun were found inside Saad Hassan’s vehicle.
[5] Saad Hassan gave a videotaped statement to the police the morning following his arrest and testified at trial he was in the area on the way to a Pho restaurant on Dundas Street west of Spadina Avenue to get some take-out food for his girlfriend residing in Scarborough. The two complainants both entered his vehicle while he was stopped in traffic and began to negotiate having sex with him for money. He rejected their advances, the conversation turned confrontational when suddenly Kelly-Anne Seymour-Seaward, in the front seat, urgently instructed Golfam Fathi in the rear seat to get out of the vehicle. They did so.
[6] Saad Hassan then discovered Golfam Fathi’s purse in the rear seat so he emptied it and found prescription medication in it. He wished to return same and the contents of the purse to her so he began driving around the area looking for her. He stopped to talk to another prostitute and overheard a fourth female tell the prostitute not to get into his car as he had a gun. He then realized the toy gun he had purchased earlier for his younger brother was partially visible in the driver’s door pocket of his vehicle. Further, it may have been the reason Kelly-Anne Seymour-Seaward and Golfam Fathi got out of his vehicle so urgently. He became scared at this point, threw the purse out of the vehicle and began driving home along Danforth Avenue when he was arrested.
[7] No victim impact statements were provided despite a request for same. A pre-sentence report was prepared and marked as Exhibit 1. Saad Hassan submitted letters from his 15 year old younger brother, his younger sister (a mother of two), his father and his fiancée, marked as Exhibits 2(a) through (d) respectively. His counsel also provided a letter from a psychologist dated January 20, 2010, an employer which was undated and an Agency Agreement dated December 28, 2016 from a subsequent employer. These are marked as Exhibits 3, 4 and 5 respectively.
[8] Counsel for the Crown sought a sentence of three years in total, that is the minimum of one year imposed by the wording under Section 85 for each verdict under this section and an additional one year for the offences under Section 344 and Section 264.1(1)(a) of the Criminal Code. In addition, ancillary orders for the provision of a sample of Saad Hassan’s DNA was made and a ten year weapons prohibition under Section 109 of the Criminal Code. Counsel for Saad Hassan submitted the appropriate sentence was in the range of two to two and one half years in total.
Mitigating and Aggravating Factors
[9] The mitigating factors begin with Saad Hassan, born on July 29, 1990, being young, and having no prior record. He came to Canada at age 9 with his family. His parents are described in the pre-sentence report and the information about them confirm they are dedicated and hardworking. Saad Hassan is the eldest of three children. His younger brother wrote about the positive impact Saad Hassan has been in his life with regard to school, social activities and becoming a responsible person. His younger sister similarly wrote about the positive influence he has been in her young family and how her impression of her brother’s character is so contrary to the events which I must address to determine a fit and proper sentence. His father wrote about how painful it has been for the family. He also, wisely noted Saad Hassan’s youth and energy gives him an opportunity to rebuild his life. His fiancée remains supportive and noted their lives together were “at a pause”.
[10] Saad Hassan is clearly intelligent, having attended University. I was advised he was 12 credits short of obtaining a Bachelor’s degree. He wants to obtain a Masters in Business Administration. There is no doubt Saad Hassan has a strong potential for rehabilitation.
[11] The Crown did raise that this mitigating factor is somewhat undermined by the use of his intelligence in committing the crimes for which he was convicted by the jury. The Crown noted Saad Hassan’s statement to the police following being apprehended included that the complainants, being prostitutes, were not likely to go to the police.
[12] Regarding Saad Hassan’s education, the letter from the psychologist, dated January 20, 2010 noted he was suffering from depression and supported his departure from that school not be noted as “Required to Withdraw”. His condition was amenable to treatment and treatment was likely to alleviate his difficulties. I heard no submissions or evidence of any treatment or, if taken, the result of same.
[13] The aggravating factors begin with the jury having accepted the complainants’ versions of events over that of Saad Hassan. That is, there are five offences committed on the same evening within a short period of time. Both complainants said they had the imitation firearm pointed at them. The jury must have accepted that Saad Hassan threatened to shoot Kelly-Anne Seymour-Seaward to convict him of threatening bodily harm. Saad Hassan took Golfam Fathi’s purse containing some of her personal belongings of which only her wallet and identification were recovered. There is also the issue of these crimes being committed against individuals, who by the nature of their occupation, are vulnerable. They generally work alone, late at night and likely without the benefit of security cameras as may exist in the case of a convenience store cashier or a glass barrier that may exist in the case of a taxi driver.
[14] The pre-sentence report and the Crown raised lack of remorse in not accepting responsibility which relates to his ongoing denial of what the jury found to have occurred. There is authority, with which I agree, it is not appropriate to treat one maintaining ones innocence following a guilty verdict to be an aggravating factor. While counsel did not direct me specifically to it, I agree with the statement in R. v. Valentini et al, 1999 1885 (ON CA), [1999] O.J. No. 251, (at paragraph 83) “to treat lack of remorse as an aggravating factor in those circumstances, comes close to increasing the sentence because the accused exercised his right to make full answer and defence”.
The Law
[15] I was directed to R. v. Clarke, 2014 ONCA 296 in which a 19 year old robbed a convenience store while wearing a mask, using an imitation firearm and in which the imitation gun was pointed at the head of the clerk. It was also pushed against his ribs. Similar to the situation before me, the Court of Appeal addressed what it described as the agonizing task where the very serious offence or offences committed must be weighed against the mitigating factors of a youthful first offender with good potential for rehabilitation. The Court of Appeal did not disturb the mandatory minimum for one year for the use of the imitation firearm and a consecutive term of one year less a day on the robbery and disguise offences.
[16] I note the comment “it is well established in the case law that robbery of a convenience store at night while wearing a mask required custodial time” (at paragraph 18). I have little difficulty substituting a prostitute for a convenience store clerk and the reluctance a prostitute might have in reporting the crime with an accused wearing a mask.
[17] Counsel for Saad Hassan directed me to the comments of the British Columbia Court of Appeal in R. v. Stauffer, 2007 BCCA 7, where the totality principle was reviewed in reducing a sentence of 30 years for committing seven robberies to 14 years. I am guided by comments contained in the decision in the need for a “just and an appropriate” sentence to consider a proportional result when it involves the mandatory minimum sentence in multiple offences. Here, counsel agreed Saad Hassan must be sentenced to the minimum of one year consecutively for each Section 85 offence.
[18] I was also directed to R. v. Panchan and Lopes, 2013 ONSC 5567 where Justice Code weighed the principles of sentencing set out in Sections 718, 718.1 and 718.2 of the Criminal Code. Justice Code addressed the serious nature of the crimes, (of which robbery was one before him). This was considered along with the accused being a youthful, first offender with good rehabilitation prospects.
[19] I also heard submissions about credit being given for harsh bail conditions post arrest. In this regard, Saad Hassan was in custody for nine days (which the parties agree entitle him to 14 days credit). His release on June 27, 2013 imposed terms which included a curfew, living with his parents, remaining within a defined area within a small portion of Metropolitan Toronto and not driving. This was varied on December 9, 2013 to permit time beyond the curfew for attending school. On September 3, 2015, the curfew, boundary and driving restrictions were all lifted.
[20] Counsel for Saad Hassan referred me to R. v. Junkert, 2010 ONCA 549 where the Court of Appeal noted (at paragraph 35) “the impact of pre-trial bail conditions can be severe. As a result, a sentencing judge may give an accused credit for time spent under pre-trial bail conditions”. In that case, the trial judge chose not to allow any credit for what was described as “significantly restrictive” conditions. The accused in that matter was in custody for six days following arrest and then only allowed to leave his home in the presence of his surety, being his elderly father. He was not permitted to drive or consume alcohol. This lasted for 28 months.
[21] Before me, the focus was on the December 9, 2013 to September 3, 2015 or 21 months while Saad Hassan was restricted in where he could travel, could not drive and the time he could not be outside his parent’s home aside from attending school. In my view, these restrictions were not so severe as to warrant any credit. As a then, 23-25 year old, Saad Hassan could further his schooling. He had lived with his parents all of his life except when attending University. I prefer the reasoning of Justice MacPherson in R. v. Ijam, 2007 ONCA 597 and the entirety of paragraph 36 which can be summarized to be “Put bluntly, bail is not jail. Bail is what an accused person desires to stay out of jail.”
[22] As such, it is not necessary to deal with what amount of credit be given beyond noting counsel for Saad Hassan was seeking .2 days for the 21 month (or 632 days by my calculation) for the period involved which would be 126 days credit or just over 4 months.
Conclusion
[23] It is clear to me that the guilty verdicts under Section 85(3) of the Criminal Code require a minimum sentence of one year each and that they are to be served consecutively. The request by counsel that only the minimum mandatory sentence for each verdict under the sections is appropriate and just. It reflects and balances the serious nature of the crimes committed and the positive rehabilitation prospects of Saad Hassan.
[24] I would also agree with the submissions of Crown counsel that additional time in custody for the remaining three verdicts of robbery, attempted robbery and threatening bodily harm require additional time in custody. The seriousness of the robbery and the attempted robbery offences are self-evident given the maximum sentence available for these offences.
[25] Having reviewed the guiding principles of Sections 718, 718.1 and 718.2 of the Criminal Code and having reflected upon the submissions of counsel regarding the circumstances of Saad Hassan, I agree with the submissions of the Crown that an additional one year is appropriate. That is, a custodial sentence of three years in total, less a credit of 14 days for the time served is imposed.
[26] I further agree that a DNA order is appropriate. It shall be included as an ancillary term. Section 109(1)(a) of the Criminal Code applies and a weapons prohibition is imposed.
Mr. Justice G. Dow
Released: May 10, 2018
COURT FILE NO.: CR-16-10000-466-00000-0000
DATE: 20180510
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SAAD HASSAN
REASONS FOR SENTENCE
Mr. Justice G. Dow
Released: May 10, 2018