R. v. Yabarow, 2019 ONSC 5796

COURT FILE NO.: CR-18-50000385-0000

DATE: 20191010

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

ABDIRISAQ YABAROW

Paul Zambonini and Gus Kim, for the Crown

Jennifer Penman and Tania Bariteau, for Abdirisaq Yabarow

HEARD: September 27, 2019

M. Dambrot J.:

1On June 25, 2019, a jury found Mr. Yabarow guilty of the second degree murder of Abdinasir Hussein. I am now called upon to impose sentence. While a sentence of life imprisonment is mandatory for the offence of second degree murder, I must decide whether I should substitute for ten years a greater number of years of imprisonment without eligibility for parole. I must also determine what ancillary orders should be made in this case.

The Offence

2The offender, who is originally from Somalia, came to Canada in May 2017. He met Mr. Hussein while working the night shift at his place of employment on October 3, 2017. Mr. Hussein was also from Somalia but, unlike Mr. Yabarow, he was well-established in Canada. Mr. Hussein invited Mr. Yabarow to come to his home when he finished his shift. Mr. Yabarow finished work at 7:00 a.m. and took a taxi to Mr. Hussein’s apartment.

3Mr. Yabarow spent most of the day with Mr. Hussein at Mr. Hussein’s apartment. They were joined by several of Mr. Hussein’s Somali friends. They were all consuming alcohol. In the course of the day, perhaps in part because he was being teased about being new to Canada, and perhaps in part because of his consumption of alcohol, Mr. Yabarow became belligerent, and broke a bottle on the head of one of the men, injuring him. The man retaliated by hitting Mr. Yabarow with a stick, causing him to bleed. Following this fight, everyone except the accused and the deceased left the apartment. Mr. Yabarow and Mr. Hussein remained in the apartment and continued to consume alcohol.

4Very late in the evening, Mr. Yabarow and Mr. Hussein got into some sort of a dispute. Mr. Yabarow ended up on top of Mr. Hussein and subjected him to a prolonged, vicious attack, stabbing him repeatedly with a broken beer bottle and causing his death. He then discarded his blood-soaked sweatpants, track pants, track jacket and running shoes, put on some of Mr. Hussein’s clothes, and fled the apartment at 11:43 p.m. When he left, he covered his head to ensure that his face could not be seen. He walked a considerable distance before seeking medical help for his own earlier injuries. He was taken to a hospital, treated and released.

5The following morning, the deceased’s body was discovered in the apartment. The scene was very bloody, and the deceased had hundreds of linear, irregular haphazard sharp force injuries to his scalp, face, neck, shoulders, arms, upper back and chest, varying from pinpricks to 20 centimetre-long incisions. Although the attack was very brutal, Mr. Hussein was not stabbed in any vital organ. He died of blood loss resulting from the cumulative effect of the wounds. He might have survived had Mr. Yabarow called for medical help rather than simply fleeing the scene. Without medical attention, Mr. Hussein bled to death.

6After he left the hospital, Mr. Yabarow hid out in an industrial furnace room until his arrest on October 6, 2017. In the interim, he obtained a passport and made efforts to obtain an airplane ticket and flee the country.

7Finally, I note that the offender testified, and raised defences relating to intoxication, self-defence and provocation, but the jury disbelieved him and rejected them all.

The Impact of this Crime

The Crown presented two victim impact statements at the sentencing hearing in this case, one written by Mr. Hussein’s sister, and the other by his daughter Sabah. They are a testament to a loving and generous man who always put the needs of others first, and the enormous loss his cruel and untimely death has been to his loved ones. Sabah spoke with notable eloquence and dignity. Most remarkably, she told the offender that her family doesn’t hate him or wish evil on him and understands the enormous burden he and his family must now face. She said that they have forgiven him and hope that he gets the help he needs and can learn to live with himself. It is plain, however, that the family’s scars are very deep, and far from healed.

The Offender

8The offender is 38 years old. He was born in Somalia, and had a normal, happy childhood to the age of seven, when a civil war began. His education ended, he suffered poverty and he endured in a society filled with conflict, turmoil and strife. Ultimately, he and his sisters were able to get out of Somalia. He arrived in Turkey as a refugee, where he obtained employment and met his wife, marrying in 2006. He has five children, ranging from 5 to 15 years of age. He was unable to obtain citizenship in Turkey, and went to Norway, again as a refugee. He ultimately became a citizen, and his family joined him in 2011. However, he was unable to sponsor his mother-in-law, who remained in Turkey. As a result, he came to Canada where he again secured refugee status, hoping eventually to unite his whole family here. He was also able to secure employment.

9The offender has been in custody since his arrest two years ago. His incarceration has limited his ability to communicate with his family, and he has suffered stress and anxiety. He was assaulted in jail, suffering a broken arm and jaw, and requiring stitches to his face. Despite these obstacles, and to his credit, he has made substantial efforts to improve himself, and to improve his literacy in English.

The Jury’s Recommendation

10The jury recommendation concerning parole ineligibility was far from unanimous. Six jurors made no recommendation, one recommended 15 years, one recommended 16 years, three recommended 20 years and one recommended 25.

The Positions of the Parties

11It is the position of the Crown that I should increase the 10 year period of parole ineligibility for second degree murder to 15 years and impose certain ancillary orders. In support of the 15-year recommendation, Crown counsel referred to several cases when 15 years of parole ineligibility was imposed on offenders who brutally and repeatedly stabbed and killed their victims or beat their victims to death.

12Counsel for Mr. Yabarow provided me with several cases that are somewhat similar in nature, where parole ineligibility in the range of 10 to 13 years was imposed. She pointed to the offender’s difficult background, his separation from his family, his efforts to improve himself, and the fact that although he was not too intoxicated to form the specific intent for murder, his crime was fueled by alcohol and the weapon used was a weapon of opportunity. For these reasons, she recommended that I not increase the period of parole ineligibility beyond the mandatory 10 years.

Analysis

13In determining the appropriate sentence to be imposed in this case, I bear in mind that the fundamental purpose of sentencing as set out in s. 718 of the Criminal Code is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which include denunciation, deterrence, rehabilitation, the promotion of responsibility and the acknowledgement of the harm that criminal activity brings to our community. I must also take into consideration the sentencing principles found in s. 718.2 of the Criminal Code.

14While the foregoing considerations apply to sentencing in general, s. 745.4 of the Criminal Code requires a judge setting a period of parole ineligibility to have particular regard to the following:

(i) the character of the offender;

(ii) the nature of the offence;

(iii) the circumstances surrounding the commission of the offence; and

(iv) the recommendation of the jury, if any, pursuant to s. 745.2.

15With respect to the character of the offender, I take into account that he is a first offender so far as I know, he has had a difficult life, he will be separated from his wife and children for a very long time and he has made efforts, since his arrest, at self-improvement.

16With respect to the nature of the offence and the circumstances surrounding it, I bear in mind that the offence was fueled by alcohol, which made the offender susceptible to his apparent tendency to violent outbursts.

17On the other hand, I note the following aggravating circumstances:

• The offence was brutal and prolonged.

• Although the offence itself may have resulted from a fit of violence fueled by alcohol, once the offender’s temper had cooled and he had deliberately changed his clothing to facilitate his flight, he chose not to notify anyone that the victim had been stabbed and was bleeding profusely, a cowardly act that may have contributed to Mr. Hussein’s death.

• The offence had a devastating impact on the family of Mr. Hussein.

18With respect to the jury’s recommendation, while it is a factor to be considered in the determination of the period of parole ineligibility, it remains what it is: a recommendation. It is usually reached in short order, after an exhausting determination of a verdict, and with very little guidance. It is not particularly well-informed, is generally made without any appreciation of the wider sentencing context and need not be slavishly followed. More importantly, in this case, the recommendations of the individual jurors are too scattered to be helpful.

19In the end, while I acknowledge that the viciousness of the murder might, in many circumstances, justify the 15 years of parole ineligibility recommended by the Crown, in the particular circumstances of this case, I am of the view that 13 years is sufficient.

Disposition

20The offender is sentenced to life imprisonment, without eligibility for parole for 13 years. In addition, I make a DNA primary designated offence order pursuant to s. 487.051(1) of the Criminal Code, and a firearms prohibition order for life pursuant to s. 109(1) of the Code.