Her Majesty the Queen v. Mohammed Hashimi, 2019 ONSC 812

COURT FILE NO.: CR-18-30000673-0000/CR-18-30000674-0000

DATE: 2019-02-01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHAMMED HASHIMI

Accused

Paul McDermott, for the Crown

Benjamin Goldman, for the Accused

HEARD: November 26-30, 2018; December 3, 4, 13, 2018; January 25, 28, 2019.

REASONS FOR sentence

BOUCHER J.

Overview

1These are the reasons for sentence in R. v. Mohammed Hashimi. The sentencing is for various firearm and drug-related charges arising from an incident on July 17, 2016. Mr. Hashimi is sentenced to a total of 6.5 years custody for all offences, less credit for 484 days of pretrial custody. History of Proceeding

2Mr. Hashimi was found guilty by a jury on December 4, 2018 of these three charges:

1. pointing a firearm at a group of males contrary to s.87(1) of the Criminal Code,

2. carrying a concealed weapon without authorization contrary to s.90(1), and

3. possession of a firearm knowing the serial number had been altered contrary to s.108(1)(b).

3Mr. Hashimi plead guilty before me on December 13, 2018, to these additional charges arising from the same incident on July 17, 2016:

4. breach of a s.109 firearms prohibition order by possessing prohibited ammunition, contrary to section 117.01(1).

5. possession of cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.

6. possession of proceeds of crime, contrary to section 354(1).

4This sentencing decision applies to all the above listed offences.

Circumstances of the Offence

Undisputed Facts

5As the sentencing court following a judge and jury trial, I must accept all facts, express or implied, that are essential to the jury’s verdict of guilty, and I may find any other relevant fact disclosed by the evidence at trial: Code, s. 724(2). The undisputed and essential facts are set out as follows below.

6Mr. Hashimi was attacked by a group of three to four males as he stood with two female friends near the corner of College and Bathurst Streets in Toronto. The males had exited a vehicle that had pulled up at the intersection. They punched and kicked Mr. Hashimi, and knocked him to the ground. A few minutes later, the attack ended, and the aggressors walked away towards their vehicle.

7As the men were walking away, Mr. Hashimi pointed a handgun at them. Once the men realized there was a gun, they started to run, and quickly left the scene in their SUV. Mr. Hashimi continued to point the gun at the SUV as it drove away. Mr. Hashimi put the gun back in his pants. He and his friends then left the scene. A bystander called police.

8Police located Mr. Hashimi nearby walking southbound. As they approached, Mr. Hashimi made eye contact with one of the officers, then ran away with his hands in the air and continued to run despite receiving contrary direction from police. When police caught up to him, Mr. Hashimi fought against both his arrest and the search of his person. The police found the handgun in Mr. Hashimi’s pants during their search of him on the street. During the search of his person at the station, the police found three rounds of prohibited ammunition, 5.77 grams of cocaine that was divided into small packages, and $540 cash that Mr. Hashimi admits is the proceeds of crime.

Disputed Facts

9Following a jury trial, disputed facts that are not essential to the jury’s findings are to be resolved in the manner dictated by s.724(3) of the Criminal Code. The parties agreed that the trial record and their submissions were sufficient for me to make findings of fact for the disputed matters. Disputed facts that are aggravating in nature must be proven beyond a reasonable doubt. All other disputed facts must be proved on a balance of probabilities.

a) Ownership of the Gun/Alleged Robbery

10Mr. Hashimi testified that he obtained the handgun in mitigating circumstances. Shortly before the attack on him at College and Bathurst, he had been robbed at gunpoint around the corner from the incident. Mr. Hashimi testified that he grabbed the gun by the barrel and wrestled it away from the robber. In the course of the struggle, the gun fired.

11Mr. Hashimi testified that after he gained control of the gun, he stuck it down the front of his pants, on his hip. He gave several reasons for keeping the gun. First, he said that he had been unsure whether something else would happen to him that night. Second, he noted that someone else could have picked it up if he were to have dropped it. Later in his evidence, he emphasized that he had wanted to bring the gun to his father so that his father could have informed the authorities about it or returned it to the police.

12Two of Mr. Hashimi’s friends testified at trial with their accounts of the alleged robbery. Their accounts were inconsistent with each other and with Mr. Hashimi on very significant parts of the story including the nature of the fight with the robber, whether the gun had fired during the robbery, and whether the alleged robber had been part of the gang attack that followed.

13The Crown argued that the robbery story had been concocted to construct a defence of innocent possession. Because the various accounts had stark differences in terms of timing, the route taken, whether or not the gun had fired, and who was involved in the later assault, this was highly suggestive of falsehood. There was no credibly explained motive for the robbery. Mr. Hashimi’s description of gaining of control of the gun seemed nearly impossible – it would have been very unlikely or impossible for two men to have had their fingers on the trigger at the same time. The likelihood of two violent incidents having occurred in this manner, minutes apart, and the allegation that a shot had been fired near a busy intersection with no police or other attention following the incident was incredible. The fact that Mr. Hashimi had been found in possession of matching ammunition, with no credible explanation proffered, made it further certain that the gun was in fact Mr. Hashimi’s.

14I find that this mitigating set of circumstances is not established. The matching or similar ammunition found on Mr. Hashimi’s person, the lack of police or other intervention or notice of the alleged prior shooting/robbery incident on a busy club going-night in Toronto, the alleged method of taking control of the gun without resulting injury and the unlikelihood of two fingers being placed on the trigger in the circumstances as described, the unclear and unconvincing explanation for the start of the alleged robbery, and the differences in the accounts of Mr. Hashimi and the defence witnesses make the robbery story as told unlikely and indeed not established as mitigating circumstances, at least in the manner as described. Based on a consideration of all the circumstances, I reject the part of the story where Mr. Hashimi obtained possession of the gun that night only by virtue of having taken it away from a robber in the minutes preceding the attack. This is not established as a mitigating feature.

b) Attempted Shooting

15I find as an aggravating factor that Mr. Hashimi attempted to shoot the pointed firearm. I accept the defence witness evidence on this point. The evidence was against Mr. Hashimi’s interests, the two are good friends, and it accords with the experience of the police in later testing the gun – the particular ammunition in the gun did not fire when the trigger was pulled. This fact is proven beyond a reasonable doubt. The attempted shooting is an aggravating feature because it occurred in a crowded public area following bar closing near a bus stop and traffic, and the men targeted were running away from Mr. Hashimi, further reducing or indeed eliminating the possible connection to self-defence as I explain later. Mr. Hashimi’s denial of firing the gun at this time is not credible due to the overall problems with his narrative as outlined above, and does not raise a reasonable doubt, in light of his friend’s statement against him and the similarity of her explanation of the gun not working and the police experience with the gun and ammunition later when tested.

c) Self-Defence

16The jury rejected Mr. Hashimi’s assertion of self-defence in convicting him of the point firearm offence. On sentence, Mr. Hashimi argues that the jury may have believed that the actions were self-defensive, but perhaps that they were excessive. Mr. Hashimi’s counsel relies on Mr. Hashimi’s testimony that he initially started to handle the firearm as the attack on him was in its ending moments.

17Mr. Hashimi’s actions were not legal self-defence. Even if he started to pull the gun out at the end of the attack on him, his actions in pointing the gun, and attempting to fire it at men who were clearly leaving the scene, walking away from him, and getting into their car was not reasonable or necessary to defend himself in the circumstances. His continued actions in pointing the firearm as the car drove off speak more to revenge or anger than self-defence. This mitigating factor is not established.

d) Public Duty/Intention to Turn Gun Over to Police

18The jury rejected Mr. Hashimi’s assertion of a public duty defence to the carry concealed weapon and serial number offences. On sentence, Mr. Hashimi argues that the jury may have rejected the public duty defence because Mr. Hashimi had competing purposes for possessing the firearm. He argues that his plan to turn the handgun over to police should still qualify as a mitigating factor because it was his dominant purpose, even if not his sole purpose in possessing the weapon.

19Because I rejected the defence story of coming into possession of the gun, I equally and for the same reasons reject the public purpose aspect of the story.

e) Lockdown Credit

20Mr. Hashimi requests that the 30 days he spent in “lockdown” during pretrial custody be treated as an additional mitigating factor or an enhanced credit for his pretrial custody in the calculation of his sentence.

21The jurisdictional path to reduce credit based on lockdown is unclear. I recognize that the Supreme Court in R. v. Nasogaluk 2010 SCC 6 noted that a sentencing court could address state misconduct by mitigating an offender’s sentence, even if the conduct did not amount to a breach of the Charter. However, a court does not have the power to do a reduction of that nature where there is a mandatory minimum or other limit on the sentence. With respect to pretrial custody, the Criminal Code limits the amount of credit that can be awarded. A court could potentially afford a remedy under s.24(1) where a Charter breach was established. No application for s.24(1) relief was made here. Even if there is jurisdiction to enhance pretrial custody credit, there was no evidence filed about the impact of the conditions on Mr. Hashimi. There was a sheet filed with the court listing the lockdown dates. This sheet indicated the reason for lockdown was staffing shortages, which would not normally be an acceptable basis for sustained or repeated instances of excessively restrictive incarceration. In other cases where extra credit was awarded, there was an extensive evidentiary record to support the further reduction in sentence. Here, the evidentiary record is insufficient to ground a claim for credit beyond the 1.5/1 ratio.

Circumstances of the Offender

22Mr. Hashimi is 30 years old. He is a citizen. He lives in the GTA/905 with his mother. He has the support of his family, his parents and siblings. He is the father of two young children. The children live with their mother, and Mr. Hashimi sees them regularly. Mr. Hashimi’s third child died in tragic circumstances while Mr. Hashimi was in custody on his previous sentence. This fact is said to continue to haunt Mr. Hashimi and has caused him to make poor lifestyle choices and decisions, including increased drug use.

23Mr. Hashimi did not complete high school. He had been enrolled in an educational program while on bail, but had not completed any credits by the end of trial. His counsel described him as having had a difficult upbringing. He grew up in a low income area, had difficulties in school and had a negative peer group. His counsel said he started experimenting with drugs as a teen, and had developed a 2-300 dollar a day cocaine habit, which he supported by dealing drugs. His counsel said he had never engaged in any drug treatment court or other programming and he did not request to do so in relation to this matter.

24Mr. Hashimi has a criminal record that includes a recent conviction for possessing a loaded prohibited firearm, and six prior drug offences. He has never served a penitentiary sentence. Some of the prior offences and sentences of significance include these:

1. 2013-03-01 Possess loaded prohibited or restricted firearm s.95(1), 6 months jail and 3 years’ probation (6 months pretrial custody), plus a s.109 order for life.

2. 2013-03-01 Possess Schedule III substance (MDMA) for the purpose of trafficking, 1 year pre-trial custody plus one day jail. This was part of the same incident as the prohibited firearm charge.

3. 2009-10-30 Possess Schedule I substance for the purpose of trafficking, 3.5 months jail with 39 days pre-sentence custody, and a s.109 order.

4. 2009-10-02 Fail to comply recognizance, 1 month jail; flight while pursued by police, 4 months consecutive; fail to stop at accident, 2 months’ jail consecutive, possess schedule II substance 1 day jail.

5. 2007-11-02 Possess Schedule I substance for purpose of trafficking, 30 days jail with 11 days pre-sentence custody; assault, 15 days jail; fail to comply recognizance, 5 days jail.

Positions of Crown and Defence

25The Crown has requested a total sentence of 8 years in custody for all the offences. The Crown suggests the sentence be calculated as follows:

• Point firearm: 4 years’ custody.

• Carry concealed weapon and the serial number offence: 18 months concurrent to each other, but consecutive to the point firearm sentence.

• Breach of firearms prohibition: 18 months consecutive.

• Possession of cocaine for the purpose of trafficking and proceeds of crime: 1 year concurrent to each other, and consecutive to the remaining counting.

26The Defence requests a total sentence of 3 years jail: concurrent sentences of 2.5 years’ jail for all offences, consecutive to a 6 month sentence for the breach of prohibition order.

Minimum and Maximum Sentences

27Under s.87(2), the offence of pointing a firearm carries a maximum penalty of five years.

28Under s.90(2)(a), the maximum penalty for carrying a concealed weapon is five years.

29Section 108(2) provides a maximum penalty of five years for the serial number offence.

30Section 117.01(3) provides a maximum penalty of 10 years for violating a firearms prohibition order.

31Section 355(b)(i) has a maximum penalty of 2 years for possessing proceeds of crime in an amount under five thousand dollars.

32Section 5(2) of the Controlled Drugs and Substances Act sets a maximum penalty of life imprisonment for possessing cocaine for the purpose of trafficking. There is a one year mandatory minimum if the person carried a weapon in committing the offence.

Principles of Sentencing

33All sentences must conform to the principles of sentencing in the Criminal Code. The fundamental purpose of sentencing, as described in s.718, “is to contribute… to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives”, which include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender.

34The balancing of the principles of sentencing is a case-specific exercise governed by all the circumstances.

35All sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

36Deterrence and denunciation are key principles for the firearms offences in this case – the pointing, concealing and carrying of a firearm with its serial number removed, in a public place - due to the danger the conduct poses to society. Such offenders should as noted by Justice Doherty in Nur 2013 ONCA 677 at para. 206, “continue to receive exemplary sentences that will emphasize deterrence and denunciation. See also R. v. Danvers, 2005 30044 (ON CA), at paragraphs 76-78.

37Rehabilitation and restraint are always factors for consideration. These factors are particularly pronounced where a first penitentiary sentence for a youthful offender is contemplated. See for example R. v. Borde, 2003 4187 (ON CA); R. v. Sousa 2011 ONSC 6463, para. 19. Mr. Hashimi is not particularly youthful, though he is still relatively young and has not served a penitentiary sentence.

38Separation and specific deterrence are applicable principles given the danger and harm to society flowing from Mr. Hashimi’s possession and use of a firearm, and the possession for the purpose of sale a highly addictive, damaging substance. Mr. Hashimi has had multiple sentences in provincial jails, that appear to have had limited rehabilitative or deterrent impact. There is no compelling plan put forward to chart Mr. Hashimi’s rehabilitative path away from criminal lifestyle choices involving drugs and firearms. In the absence of such a plan, there is a risk to public safety that must be addressed with a significant sentence, given his history.

39Parity with other offenders sentenced for firearm and drug offences has significant weight in this circumstance as well, given the limited individualized factors compelling a more mitigated sentence. The offences in this case are various gun and drug-related offences. The conduct is at the serious end of the spectrum, where there is a risk to the safety of the public, where the firearm is used as a tool of criminal conduct. The unlawful possession of restricted and prohibited firearms offences in such circumstances attracts significant sentences from the courts: R. v. Nur 2015 SCC 15 at paras. 80-82.

40Justice Code, in sentencing Mr. Nur in the first instance, noted that there was an established range of 2 years less a day to 3 years jail for gun possession offences in Toronto, if no additional convictions or further aggravating conduct was present: see Nur, paras. 80-82, R. v. Sousa, 2011 ONSC 6463 at para. 34; R. v. Nsiah 2017 ONSC 769; R. v. Mohamed 2014 ONCA 103. An individual count of either possessing or pointing of firearms could also attract a sentence in the 9-12 month range when the principle of totality weighs more heavily, when such charges form part of a larger global sentencing picture: see for example R. v. Alvarez, 2014 ONSC 902; R. v. Abdullahi, 2015 ONCA 549.

41The range for gun offences tends to be 1-4 years higher where additional criminal offences or aggravating conduct are part of the circumstances. Aggravating circumstances could include being in breach of a firearms prohibition order, fleeing from the police, the gun being loaded or the offender having accessible ammunition, firing the weapon, the gun having a defaced serial number, possessing the weapon in a public place, using or pointing the firearm, and possessing drugs for the purpose of trafficking in conjunction with the firearm possession. The parties filed many cases as examples of the sentencing range. For an extensive review of this case law at the low and high end of the range based on the individual case factors, see Justice MacDonnell’s summary in R. v. Sousa, 2011 ONSC 6463 at paras 21-40; see also R .v. Ambrose, 2016 ONCJ 396; R .v. Ledinek 2018 ONCA 1017; R. v. Slack, 2015 ONCA 94; R. v. Ellis, 2016 ONCA 598; R. v. Omar, 2015 ONCA 207; R. v. Carrol, 2014 ONSC 2063; R. v. Bryce, 2016 ONSC 7897; R. v. J.B, 2016 ONSC 939.

42The principle of totality must be observed as well where required by the interests of justice and permitted by statute, and the combined effect of consecutive sentences should not be unduly long or harsh.

Mitigating and Aggravating Factors

43The aggravating circumstances are outlined in the factual narrative. The firearm pointed was a prohibited one and there was no lawful reason for Mr. Hashimi to possess it. Mr. Hashimi concealed, pointed, and attempted to fire the handgun in a crowded public area and continued to do so as the targeted men were fleeing. Mr. Hashimi possessed cocaine for the purpose of trafficking and the proceeds of crime while he carried the weapon, unsecured, in his pants, through a busy part of the city at closing time for bars in the area. He had recently been convicted of possessing a loaded prohibited firearm at the same time as possessing drugs for the purpose of trafficking, and he was violating his lifetime firearms prohibition order imposed for that offence. He fled from police and fought his arrest and the seizure of the weapon and the drugs.

44The mitigating factors are as mentioned above. Mr. Hashimi was attacked in a violent, unprovoked and likely humiliating manner immediately preceding the incident that led to these charges. However, gun violence, particularly when it was unnecessary or excessive in the circumstances, as found by the jury, is never an acceptable response to an attack when the attack has ceased and there is no continuing danger. Vigilantism and revenge are not permitted under the law for the safety of society at large and the ethical determination made by society in enacting the criminal law and the limits around self-defence. This factor accordingly has limited weight in the circumstances.

45Mr. Hashimi has the support of his family and the potential to turn his life around if he chooses to do so in future.

Sentencing Decision

46Given all of the above considerations, with particular attention to the principle of totality and the fact that this is a first penitentiary sentence balanced against the primary societal interest in being protected against gun violence and harmful substances, I sentence Mr. Hashimi to 6.5 years custody, less 484 days of credit for pretrial custody. This credit for pretrial custody is grossed up at the maximum rate of 1.5/1 for each day of actual pretrial custody, in recognition of loss of remission time and the harsh conditions including lockdown.

47The sentence is apportioned as followed:

• Point firearm: 2.5 years jail, less 484 days pretrial custody credit.

• Carry concealed weapon: 18 months consecutive.

• Possess firearm knowing the serial number was altered: 18 months concurrent.

• Breach of firearms prohibition: 18 months consecutive.

• Possession of cocaine for the purpose of trafficking: 1 year consecutive.

• Possession of the proceeds of crime: 1 year concurrent.

Ancillary Orders

48The following ancillary orders are made:

• Section 109 prohibition order for life. This was unopposed.

• Section 491 destruction/forfeiture order for the Taurus Millenium Pro PT 111 9 mm handgun (in other words, the firearm seized in this case), as well as for the 3 rounds of 9 mm ammunition seized in this case (the ammunition seized in this case).

• Section 462.37 forfeiture order for the proceeds of crime in the amount of $540. This was unopposed and follows the conviction for the proceeds of crime charge.

• An order for the taking of Mr. Hashimi’s DNA. This is a secondary designated offence. There is no enhanced impact on Mr. Hashimi’s privacy interests in the circumstances, and the nature of the circumstances warrants an order.

Boucher J.