Court File and Parties

Court File No.: CR 0418\17 Date: 2019-06-18 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Muse Abdirahim

Counsel: Valerie Culp, for the Crown Christopher Assie, for the Accused

Heard: May 30, 2019

Reasons for Sentence

P.J. Monahan J.

[1] In August and September 2010, Muse Abdirahim committed two armed robberies in Toronto. The first occurred at a Stay Inn Hotel and Suites on August 13, 2010, while the second occurred at a cellular wireless store on September 20, 2010.

[2] Mr. Abdirahim pleaded guilty to a total of six charges arising out of these two robberies. This included the two charges in relation to the Stay Inn Hotel robbery, namely, having used a restricted or prohibited firearm to commit the robbery, and having his face disguised with intent to commit the robbery. He also pleaded guilty to four charges arising from the robbery at the cellular wireless store, including using a restricted or prohibited firearm to commit the robbery, having his face disguised with intent to commit the robbery, and possessing a loaded prohibited or restricted firearm without the necessary authorization or registration certificate.

[3] Mr. Abdirahim pleaded not guilty to two charges arising out of the robbery at the cellular wireless store, namely: (i) that he had used a restricted or prohibited firearm to attempt to murder Najeeb Tariq, contrary to s. 239(1)(a) of the Criminal Code; and (ii) that he had discharged a restricted or prohibited firearm, namely, a handgun, with intent to wound Najeeb Tariq, contrary to s. 244(2)(a) of the Criminal Code.

[4] Mr. Abdirahim was tried before me on these two counts without a jury. On May 30, 2019, I found him not guilty of the attempted murder charge under s. 239(1)(a), but guilty of the intent to wound charge under s. 244(2)(a).

[5] The Crown seeks a global sentence of 12 years for the seven offences in respect of which findings of guilt have been made, accompanied by a DNA order and a s.109 prohibition. The defence submits that a global sentence of six years would be more appropriate, having regard to certain mitigating circumstances relevant to Mr. Abdirahim.

The Robberies

[6] The robbery at the Stay Inn occurred just prior to 12:30 AM on August 13, 2010. Mr. Abdirahim entered the hotel wearing a dark hoodie pulled tightly over his face. He went to the cash box, pulled a silver revolver from his right side, and pointed it at a hotel employee. He then emptied the till of a quantity of cash. Mr. Abdirahim exited the hotel and escaped with the assistance of an accomplice who was waiting in a vehicle outside.

[7] The cellular wireless robbery occurred on the evening of September 20, 2010, and was captured on the store surveillance video. The wireless store was still open and the owner, Najeev Tariq, was standing behind a glass counter serving a customer. Mr. Abdirahim and an accomplice entered the store, with Mr. Abdirahim carrying a handgun in his right hand.

[8] Mr. Abdirahim lept over the glass countertop, drop-kicking Mr. Tariq in the chest. The force of the kick caused Mr. Tariq to fall backwards into a corner of the store. Mr. Abdirahim began looking behind and under the counter for cash.

[9] After a few seconds Mr. Abdirahim approached Mr. Tariq, who by this time has regained his feet. Mr. Abdirahim searched through Mr. Tariq’s pockets, pointed the gun at his head, and demanded to know where cash was kept in the store. Mr. Tariq attempted to direct Mr. Abdirahim towards a drawer located behind the counter in order to access the cash. After a few more seconds, Mr. Abdirahim took two steps back, pointed the handgun at Mr. Tariq, and shot him in the neck.

[10] Initially, Mr. Tariq was not aware that he had been shot. He can be seen attempting to direct Mr. Abdirahim to the drawer behind the counter where cash was stored. Mr. Abdirahim and his associate were unable to locate the drawer. They emptied the cash register and fled on foot.

[11] Mr. Tariq called 911. The police officer who arrived on the scene explained to him that he had been shot in the neck area. Fortunately, the bullet had exited through his back shoulder without damaging any internal organs. He was taken to hospital, treated for his wounds and released the next morning.

Subsequent Events Linking Mr. Abdirahim to the Robberies

[12] Police initially did not have any evidence linking Mr. Abdirahim to the robberies at the Stay Inn and the cellular wireless store. However, in January 2012, he was arrested and charged with conspiracy in relation to an armed robbery that took place on October 31, 2011. In November 2016, Mr. Abdirahim was convicted of that conspiracy charge and, in March 2017, was sentenced to four years incarceration. He was also ordered to provide a DNA sample.

[13] On May 9, 2017, the police learned that Mr. Abdirahim’s DNA matched DNA seized from the robberies at the Stay Inn and the cellular wireless store in 2010. On June 13, 2017 he was arrested and charged in relation to those robberies.

Applicable Sentencing Principles

[14] The purpose and principles of sentencing are set out in s. 718 of the Criminal Code. Parliament has mandated that the fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society. Trial judges are required to impose a just sanction that has 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.

[15] A fundamental principle of sentencing is proportionality, namely, that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Further, a court that imposes a sentence shall also take into consideration the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances; the principle that, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; and the principle that courts should exercise restraint in imposing imprisonment.

[16] Also significant in this case is that Parliament has mandated minimum terms of imprisonment for certain of the offences of which Mr. Abdirahim has been found guilty. In particular, the offence of discharging a firearm with intent to wound, as well as the offence of committing robbery while using a restricted or prohibited firearm, both carry a minimum punishment of five years imprisonment for a first offence. By making terms of imprisonment of that length mandatory, Parliament has ensured that denunciation and deterrence will be primary sentencing objectives in cases such as this.

[17] That said, the overarching duty of the sentencing judge is to determine a “just and appropriate” sentence; this is necessarily a highly individualized exercise, tailored to the gravity of the offence and the moral blameworthiness of the offender. [1]

The Circumstances of Mr. Abdirahim

[18] Mr. Abdirahim was born in Somalia and came to Canada with his grandmother at the age of eight, as a refugee. He lived initially with his uncle (his mother’s brother) in the Finch and Sentinel Road area of North York. Three years later he was joined by his mother and three siblings. Apart from one year when he attended high school in the United States, he has lived in Canada and been raised by his mother.

[19] After graduating from high school, he enrolled at York University. He came into conflict with his mother over his behaviour, which included staying out late, smoking and drinking, and sometimes not coming home for a few days at a time.

[20] In the summer of 2010 Mr. Abdirahim was 21 years old. He candidly acknowledged that during this stage of his life he and various friends had become engaged in criminal activity, involving drugs and robberies. He acknowledged having committed the robberies at the Stay Inn Hotel in August 2010, as well as the cellular wireless store in September 2010. He also acknowledged that his criminal activity continued until he was arrested in January 2012.

[21] Mr. Abdirahim testified that following his arrest and release on bail in February 2012, he turned his life around. He complied with stringent bail conditions. He stopped smoking, doing drugs and drinking. He cut off his ties to his previous associates involved in criminal activity and focused on school and work. Prior to his conviction and sentencing in March 2017, he was able to complete two years of university study. Since being incarcerated at the Toronto South Detention Centre he has completed seven educational courses.

[22] In the course of sentencing submissions, Mr. Abdirahim provided the court with a letter of apology. In this letter he acknowledged responsibility for his mistakes and apologized to his victims. He also affirmed that he has since changed his life, and matured significantly. He indicated that he has become an active member of a local mosque that supports youth that have had troubled pasts. He expressed similar sentiments in a statement he provided orally in court.

[23] I accept Mr. Abdirahim’s expressions of remorse, along with his desire to avoid criminal activity in the future, as being genuine and meaningful. In my view, there are reasonable grounds for optimism regarding his prospects for rehabilitation.

Impact on the Victim

[24] Although the Crown did not tender a formal victim impact statement, Crown counsel provided the court with information about the significant impact on Najeev Tariq, the victim of the shooting at the cellular wireless store.

[25] While Mr. Tariq was able to recover physically from his injuries, the robbery and shooting has had a devastating impact on his life. He continues to experience fear on a daily basis and is reluctant to go out in public.

[26] Following the robbery, he installed bulletproof glass in his store to separate and protect him from customers. This cost $10,000, and the barrier separating him from customers has negatively affected his business. His business has also been damaged by the negative media publicity surrounding the robbery.

[27] In short, the impacts of this robbery on Mr. Tariq have been lasting and severe.

Positions of the Parties

[28] The Crown argues that a 12 year custodial sentence is appropriate, taking into account the principles that the penalty should be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[29] The Crown points to a number of aggravating factors which support this substantial custodial sentence. First, Mr. Abdirahim committed two separate armed robberies. In both cases the robberies were planned and premeditated, and Mr. Abdirahim was armed and had his face obscured. Moreover in the case of the cellular wireless robbery, Mr. Abdirahim shot Mr. Tariq in the neck, inches away from his head or his heart. He could very well have killed him. The shooting was entirely unprovoked, since Mr. Tariq had been attempting to direct Mr. Abdirahim to the location of the cash drawer behind the counter. Mr. Tariq was extremely vulnerable, working alone in the evening at a retail establishment.

[30] The Crown acknowledges that a mitigating consideration is the fact that Mr. Abdirahim was youthful at the time and had no criminal record prior to the robbery at the Stay Inn. He also took responsibility for the robberies by pleading guilty, and has expressed remorse for both crimes. Nevertheless, given the significance of gun violence in the community, and the violent nature of the cellular wireless robbery, the objectives of denunciation and general deterrence are primary considerations that should govern sentencing in this case.

[31] The Court of Appeal has indicated on a number of occasions that the established range of sentence for the discharge of a firearm in the course of a robbery, resulting in the wounding of a person, is 7 to 11 years. [2] However, the Crown argues that a sentence of 12 years is appropriate in this case, given the severity of the crimes, and the fact that Mr. Abdirahim committed two separate robberies.

[32] The Crown relies in particular on Cox, where the Court of Appeal upheld a sentence of 11 years. The victim had been robbed of keys and $50 in a shopping mall, and shot in the leg by a single bullet from a handgun at the end of the robbery. The trial judge identified the accused’s youth (he was 22 at the time of the robbery) and status as a first offender as mitigating factors. He observed that given the accused’s age there was still hope he could change. However he concluded that the accused’s prospects of rehabilitation were not particularly strong. The 11-year sentence was justified given the fact that the accused had fired a gun in a crowded public place, causing life-threatening injuries to the victim, in furtherance of a petty or criminal grievance.

[33] In R. v. Young, [3] the Court of Appeal upheld a sentence of 15 years for robbery, aggravated assault and other charges. The accused and his accomplice had attempted to rob a jewelry store but had fled when they discovered that the store alarm had been activated. As he was running away, the accused turned back and shot the store owner, shattering his shinbone. In upholding the 15 year sentence, the Court of Appeal noted that the shooting was entirely gratuitous and callous. The accused in this case also had a lengthy criminal record.

[34] In R. Williams, [4] two masked men rushed through the rear door of a jewelry store, shot one of the store’s two employees, and forced the other at gunpoint to assist them in emptying the display cases of approximately $500,000 worth of jewelry. The men then fled to the parking lot where their accomplice was waiting to drive them away. The accused was 29 years old and had a significant criminal record with a total of 20 prior convictions. MacDonnell J. noted that the brazen and premeditated nature of the gunpoint robbery of a jewelry store, in the course of which an employee was cold-bloodedly shot and wounded, necessarily made denunciation and deterrence the paramount objectives of sentencing. He concluded that, but for the accused’s assistance to the police, the appropriate global sentence for his participation in the robbery would have been 10 years imprisonment. However he reduced that sentence to six years since the accused had provided assistance to the police at great cost to his personal safety and security.

[35] Taking into account these precedents, the Crown argues that an appropriate sentence for the cellular wireless robbery, considered on its own, would have been on the upper end of the 7 to 11 year range for a serious crime of this nature. However, given the fact that Mr. Abdirahim is also being sentenced for a separate robbery at the Stay Inn, the Crown argues that it is appropriate and necessary to impose a sentence above the normal range. On this basis, the Crown posits that a sentence of 12 years is justified and necessary.

[36] Counsel for Mr. Abdirahim acknowledges that, in the absence of any mitigating factors, a sentence at the upper end of the 7 to 11 year range would have been appropriate. However, counsel argues that there are significant mitigating factors which justify reducing the sentence to 6 years.

[37] These mitigating factors include the fact that there has been a lengthy delay between the commission of the offences in 2010 and the imposition of sentence. This delay of almost nine years means that the court today is not sentencing the same man who committed those offences. Counsel emphasizes that, although Mr. Abdirahim was ensconced in the criminal lifestyle at the time these offences were committed, following his release on bail in February 2012 he turned his life around. He complied with stringent bail conditions, attended school and did not reoffend.

[38] Counsel notes that in R. v. H. S., [5] the Court of Appeal indicated that, in circumstances where there is a delay between the commission of the offence and sentencing, and the accused has shown remorse and led an exemplary life, individual denunciation and deterrence may be less significant factors in sentencing.

[39] Counsel also points out that at the time he committed these offences, Mr. Abdirahim was only 21 years old and did not have a criminal record. He has also pleaded guilty to both of the robberies and made a genuine expression of remorse for the pain and suffering he has caused to his victims. This was reinforced by his letter of apology as well as his statement to the court during the hearing on sentence.

Analysis

[40] Mr. Abdirahim is to be sentenced for seven offences, involving two separate robberies. While each of those offences must receive a separate sentence, it is necessary to consider the sentence, in its totality, so as to ensure it is appropriate and not excessive. This totality principle is a particular application of the general principle of proportionality which requires that, where consecutive sentences for multiple offences are ordered, the cumulative sentence must not exceed the overall culpability of the offender. [6]

[41] One accepted method to ensure this principle is respected is to consider the global sentence to be imposed, taking into account the conduct giving rise to all of the criminal offences. Having determined the appropriate global sentence, sentences can then be imposed for each offence which result in that total sentence, provided that the total sentence appropriately reflects the gravity of the overall criminal conduct. [7]

[42] This method was effectively adopted by both Crown and defence counsel in this case, since both counsel advanced what they regarded as an appropriate global sentence for all of Mr. Abdirahim’s offences. Accordingly, I will proceed on this basis.

[43] I accept the Crown’s submission that the offences committed by Mr. Abdirahim were extremely serious and require denunciation in the strongest terms. In both the Stay Inn and cellular wireless robberies, Mr. Abdirahim and an accomplice planned a robbery in which a firearm was used. Mr. Abdirahim showed a willingness to use that firearm in a callous and brutal manner, shooting Mr. Tariq even as he was attempting to direct Mr. Abdirahim to the location in the cellular wireless store where cash was kept. Mr. Tariq has been traumatized by the shooting and those effects will undoubtedly continue for many years to come.

[44] Also significant is the fact that Mr. Abdirahim is being sentenced for two entirely separate robberies. In these circumstances, consecutive sentences should normally be imposed, in accordance with s. 718.3(4)(b)(i) of the Criminal Code. Since the minimum sentence for offences associated with each robbery is five years, consecutive sentences for these robberies would result in a minimum term of imprisonment of 10 years.

[45] Courts in Toronto have emphasized for over a decade that gun crime is a matter of grave public concern, and exemplary sentences furthering the goals of denunciation, deterrence and protection of the public will be applied in appropriate cases. [8] Given the seriousness of the firearms offences in this case, combined with the fact that the sentences for each robbery should normally be consecutive to each other, I agree with the Crown that a global sentence of 12-years incarceration would have been appropriate for these offences, in the absence of any significant mitigating factors.

[46] That said, s. 718.2(c) requires that I consider whether the imposition of consecutive sentences would result in a combined sentence that is unduly long or harsh. In my view there are significant mitigating factors which lead me to conclude that a sentence of 12 years would be excessive and inappropriate in the particular circumstances of this case.

[47] The most significant such mitigating factor is Mr. Abdirahim’s meaningful prospects for rehabilitation. As discussed above, I accept his expression of remorse for these crimes and his genuine desire to avoid a return to the criminal lifestyle. His positive behaviour during the five years following his release on bail in February 2012, suggest that his remorse and intention to turn his life around are genuine.

[48] Also significant, in my view, is that there has been a significant delay between the commission of these offences and the imposition of sentence. Mr. Abdirahim is no longer the person he was in 2010. A fit sentence must take into account his circumstances as they exist now. Mr. Abdirahim, through his counsel, candidly acknowledges that a lengthy sentence of incarceration is necessary, given the seriousness of his offences he committed. But Mr. Abdirahim also asks for the opportunity to learn and grow from his mistakes, which may be frustrated by an overly harsh and punitive prison sentence.

[49] While recognizing the importance of denouncing these crimes and deterring others, ultimately the Court must draw upon all legitimate objectives of sentencing to arrive at a “just and appropriate” sentence for Mr. Abdirahim. This includes the “totality principle” which, amongst other things, seeks to avoid imposition of a crushing sentence not in keeping with the offender’s record and prospects. [9]

[50] Having heard from Mr. Abdirahim, I find that he has matured significantly since the summer of 2010. In my view, the sentence of 12 years sought by the Crown would be excessive and harsh. It would effectively send the message to Mr. Abdirahim that his efforts to rebuild and move forward with his life are for naught.

[51] Taking all of these relevant aggravating and mitigating factors into account, I find that the appropriate global sentence for Mr. Abdirahim for these offences to be 8 years.

Disposition

[52] I sentence Muse Abdirahim to 8 years incarceration for the most serious offence, the shooting with intent to wound while using a restricted or prohibited firearm (count 6 on the Indictment), which occurred in the course of the robbery at the cellular wireless store.

[53] I further sentence him to five years incarceration for robbery while using a restricted or prohibited firearm, in respect of both the Stay Inn and cellular wireless robberies (counts 1 and 3 on the Indictment). In order to respect the totality principle, I order that the sentences for counts 1 and 3 be served concurrently with each other, and concurrently with the 8-year sentence for the shooting with intent to wound (imposed with respect to count 6).

[54] Mr. Abdirahim will receive sentences of one year for each of the other four offences to which he has pleaded guilty (counts 2, 4, 7 & 8 on the Indictment), to be served concurrently with each other, and concurrently with the sentence for intent to wound.

[55] All of the above sentences are to be served consecutively to the sentence already imposed in respect of the conspiracy to commit robbery offence, for which Mr. Abdirahim was sentenced in March 2017.

[56] I also impose a firearms prohibition in accordance with s. 109(2) of the Criminal Code, and order Mr. Abdirahim to provide a sample of his DNA in accordance with s. 487.051(1).

P. J. Monahan J.

Released: June 18, 2019

Footnotes

[1] R. v. M. (C.A.), [1996] 1 S.C.R. 500, at paragraph 81. [2] R. v. Cox, 2015 ONCA 769 ("Cox"), at paragraph 14; R. v. Bellissimo, 2009 ONCA 49, at paragraph 3. [3] R. v. Young, 2009 ONCA 891. The accused in this case received significant credit for time served, which reduced his sentence to 11 years. [4] R. v. Williams, 2014 ONSC 1762. [5] R. v. H. S., 2014 ONCA 323, at paragraphs 51 to 54. [6] R. v. Ahmed, 2017 ONCA 76, at paragraph 79. [7] R. v. Jewell (1995), 100 C.C.C. (3d) 270 (C.A.), at page 279. [8] R. v. Brown, 2010 ONCA 475, at paragraph 14. [9] R. v. M. (C.A.), supra, at paragraph 42.