Court File and Parties

Court File No.: CR-19-50000235-0000 Date: 2020-10-01 Ontario Superior Court of Justice

Between: Her Majesty the Queen - and - Zaid Mohammed

Counsel: Alice Bradstreet, for the Crown Sina Shabestary, for Mr. Mohammed

Heard: February 26 and June 8, 2020

Before: Kelly J.

Reasons for Sentence

[1] Mr. Zaid Mohammed was found guilty of aggravated assault committed contrary to s. 268 of the Criminal Code, R.S.C., 1985, c. C-46 following a plea. He now appears before me for sentencing. He did so by way of teleconference.

[2] Crown Counsel submits that the appropriate sentence is five years (60 months) in custody. Counsel for Mr. Mohammed submits that the appropriate sentence is 30 to 36 months.

[3] Both counsel agree that credit should be given to Mr. Mohammed for time he spent in pre-sentence custody, pursuant to R. v. Summers, 2013 ONCA 147, aff’d 2014 SCC 26, [2014] 1 S.C.R. 575 and R. v. Duncan, 2016 ONCA 754. They also agree that credit should be granted due to the restrictive terms of Mr. Mohammed’s release pursuant to R. v. Downes, [2006] 79 O.R. (3d) 321 (C.A.). That credit is granted.

[4] Both Counsel also agree that the following ancillary orders be imposed: a mandatory DNA order and an order pursuant to s. 109 that Mr. Mohammed possess no weapons as defined by the Criminal Code for 10 years. Those orders are imposed.

[5] After having considered the facts giving rise to the conviction, the personal background of Mr. Mohammed and the law, I find that the appropriate sentence is 40 months’ imprisonment less 18 months, 10 days’ credit for a remaining sentence of 21 months, 10 days to be served.

[6] What follows are my reasons.

The Facts of the Conviction

[7] The background giving rise to the conviction was provided by way of an Agreed Statement of Facts which may be summarized as follows:

a. Mr. Bromfield (the complainant) and Mr. Mohammed have known each other and had been friends for a number of years. In March 2018, a dispute arose between Mr. Bromfield and Mr. Mohammed. Mr. Mohammed alleged that Mr. Bromfield stole his dog. Mr. Bromfield denied the allegation and several verbal confrontations occurred over text messages and via phone calls in the month preceding April 9, 2018.

b. On Monday, April 9, 2018, at approximately 2:30 p.m., Mr. Bromfield was with his girlfriend at a public place when Mr. Mohammed called Mr. Bromfield about the theft of the dog. A heated discussion began. Mr. Bromfield put the phone on speaker so his girlfriend could hear the conversation. Mr. Mohammed stated, “Last time I seen you, you bitched up. When I see you, I’m gonna kill you.”

c. A short time later, at approximately 4:50 p.m., Mr. Mohammed, along with his friends Messrs. Tyrell Smith and Daniel Douglas, attended the area of Weston Road and Denarda Street in the City of Toronto. All parties are known to one another.

d. Messrs. Mohammed, Smith and Douglas confronted Mr. Bromfield and a physical fight ensued. Mr. Bromfield tried fighting off all three (Messrs. Mohammed, Smith and Douglas) who were armed with sharp-edged weapons. Messrs. Mohammed and Douglas each had a blade. Mr. Smith had a pair of scissors with orange handles. All were attempting to slash at Mr. Bromfield.

e. Mr. Bromfield sustained a deep defensive wound to his left hand delivered by Mr. Mohammed. Mr. Bromfield used nearby chairs and bricks to try to fend the three men off. All three men continued their barrage of attacks from different angles with various sharp-edged weapons. It became too much for Mr. Bromfield to fend off the attack and he fell to the ground. Mr. Mohammed then plunged a bladed weapon deep into Mr. Bromfield’s eye. Messrs. Mohammed, Smith and Douglas fled the scene.

f. Mr. Bromfield was transported to hospital by ambulance where he underwent surgery to remove the blade. Mr. Bromfield lost permanent sight in his left eye and sustained multiple stitches to his left hand.

[8] During submissions, Counsel for Mr. Mohammed provided details of the interaction between Messrs. Mohammed and Bromfield before the altercation. Crown Counsel agreed with the content of those submissions which may be summarized as follows:

a. Mr. Mohammed was provoked to a high degree, having had a member of his family taken from him (the dog). The incident was also one which started out as a “consent fight”. The victim, Mr. Bromfield, had invited Mr. Mohammed to his neighborhood to deal with their dispute once and for all.

b. Mr. Mohammed’s dog, a pregnant Pitbull, was stolen from him. He had independent corroboration from two people that Mr. Bromfield had stolen his dog in order to sell the puppies. Many Facebook photos of Mr. Mohammed and his beloved dog, Trina, were provided as disclosure.

c. In the days prior to the incident, Mr. Mohammed was tormented by the loss of his dog. He reached out to Mr. Bromfield on numerous occasions via text and telephone calls. During a string of continuous back-and-forth “trash talk”, Mr. Bromfield never denied taking the dog and even said “your dog worth 10 bands” referring to the litter being sold for $10,000.

d. Mr. Mohammed, on multiple occasions, asked Mr. Bromfield to take the puppies and just return Trina: “Take the puppies and give me back my dog, what you trying to do? Take care of a 6-year-old dog? Take the puppies and give back Trina.” After several threats and attempts at asking for his dog back, Mr. Bromfield responded, “I want to see you so I can show you something.”

e. Mr. Bromfield provoked Mr. Mohammed on many occasions and invited him to meet to resolve their dispute, saying, “You’re a joker kid, I’m here, let’s go, Trina here too.” At one point, Mr. Mohammed gave up and said, “My life is set, you have nothing, you can have Trina, I’m so up I can’t indulge in your kid shit” to which Mr. Bromfield said, “thanks she’s a good dog” again not denying having her.

f. Both men threatened each other and their respective families. Finally, on April 9, 2018, they had a phone conversation after which Mr. Bromfield texted Mr. Mohammed saying, “Yo kid make sure your bitch ass is there.”

g. Mr. Bromfield invited Mr. Mohammed to a consent fight and wanted to take care of the matter once and for all. This was also his own narrative provided at the preliminary hearing; he was going to take care of it like a man.

h. In the video recording of the incident, it can be seen that Mr. Bromfield was there to have a fight. He did not run away, despite having the opportunity to do so. He voluntarily showed up; this was not an incident where he was hunted down.

[9] These are the facts upon which Mr. Mohammed is being sentenced. I will now turn to a consideration of the impact on the complainant.

Impact on the Complainant

[10] The complainant provided a Victim Impact Statement to the Court. The contents may be summarized as follows:

a. Mr. Bromfield continues to suffer from the injuries inflicted on him due to this incident. He can take care of himself, but it takes him longer to complete routine things.

b. When he bends forward, Mr. Bromfield feels pain in his left eye and pressure in his head. He loses sight in his left eye from time to time. That makes it hard to focus and coordinate activities. His notion of space and distances has changed drastically as he tends to miscalculate them. He feels clumsy and uncoordinated, leading to a feeling of frustration.

c. Mr. Bromfield has cut himself off socially due to his inability to eat properly (constantly spilling food) and is embarrassed. He gets irritated easily.

d. Mr. Bromfield is unable to work due to the loss of sight in his eye. He becomes disoriented. His right hand has become very weak, leaving him unable to lift things.

e. Mr. Bromfield’s activities have been restricted due to his injuries. He is unable to lift weights in the gym due to the headaches and pain he suffers. He is unable to ride his bike because it is unsafe. Simple things, such as carrying groceries, have become difficult.

f. Mr. Bromfield’s relationship with his two-year-old daughter has also been impacted. He is unable to hold her for too long as he experiences pain in his right hand. He is unable to play freely with her due to the headaches the movements cause.

g. Mr. Bromfield concluded his statement as follows:

My general health is bad. At my age I should be enjoying life to the fullest, instead I am constantly in pain, I cannot sleep well, and as a result I wake up tired. I am easily irritable and I am really scared about the future. I cannot play basketball with my friends; I cannot carry my own groceries. Simple things like bending to make the bed, or carrying a pot of water from the sink to the stove became such a challenge. I feel so restricted, trapped due to the loss of the sight on my left eye and the injury on my right hand.

[11] I will now turn to a consideration of Mr. Mohammed’s background.

Personal Background

[12] Mr. Mohammed’s personal background may be summarized as follows:

a. Mr. Mohammed is currently 24 years of age. He was born on May 3, 1996. He is a Canadian citizen.

b. Mr. Mohammed was 22 years of age at the time of the offence.

c. Mr. Mohammed’s parents separated when he was young. He was primarily raised by his mother. He has one brother and a daughter who is eight months old.

d. Mr. Mohammed is supported by his girlfriend and family.

e. Mr. Mohammed completed his high school education. He has attended the Yorkdale Adult Learning Centre to improve his marks. He hopes to attend college for mechanical training.

f. During his pre-sentence incarceration, Mr. Mohammed participated in the following programs:

i. Maintaining employment (2x); ii. Anger Management; iii. Looking for Work; iv. Understanding Feelings; and v. Managing Stress.

g. Mr. Mohammed also participated in drug and alcohol awareness sessions while incarcerated.

h. Prior to his arrest, Mr. Mohammed worked as a mechanic. He wishes to pursue employment in that area in the future.

i. Mr. Mohammed has a criminal record with the following entries:

Date	Offence	Sentence
January 6, 2016	Possession of a Schedule II Substance for the Purpose of Trafficking.	Conditional discharge and probation for 12 months.
April 4, 2014	Assault.	Conditional discharge and probation for 12 months. A discretionary weapons prohibition for 5 years.

[13] I will now turn to a consideration of the law.

The Legal Framework

[14] In determining an appropriate sentence, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating 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 acknowledgment of the harm done to victims or to the community.

[15] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (vi); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)). See R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, aff’d 2013 ONCA 677, 117 O.R. (3d) 401, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773

[16] Pursuant to s. 718.1 of the Criminal Code, “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. See R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 80

[17] The Crown has provided cases upon which she relies in support of the range of sentence for aggravated assault:

R. v. Tourville, 2011 ONSC 1677: Mr. Tourville was convicted of aggravated assault by a jury. Mr. Tourville and the victim had been involved in a fight in which the victim suffered multiple stab wounds. Mr. Tourville was sentenced to 21 months in custody, together with two years’ probation. Code J. described the fight as a lawful one until the defendant used a knife.

Code J. discussed the range of sentences available following the conviction of Mr. Tourville, pursuant to s. 268 of the Criminal Code. His reasons are based on a review of the law. He concluded that there is a wide range of sentences available to the court for those offenders convicted of aggravated assault. He found the sentences fall into the following ranges:

i. Suspended sentence: In an exceptional case such as that involving an Aboriginal offender with no prior criminal record and who had a difficult upbringing. By the time of sentencing, the offender was making progress through employment and counseling for substance abuse problems. See R. v. Tourville, at para. 27

ii. Mid-range of 18 months to 2 years less one day: This sentence is usually imposed on first offenders. Generally, there is some element of a consensual fight where the offender has resorted to excessive force. See R. v. Tourville, at paras. 28 and 29

iii. High end range of 4-6 years: These cases involve recidivists with serious criminal records. As well, they typically involve “unprovoked” or “premeditated” assaults with no suggestion that the fight was consensual or the offender acted in self-defense. See R. v. Tourville, at para. 30

R. v. Rusha, 2020 ONSC 387: Mr. Rusha was convicted of four assault-based offences, including one count of aggravated assault, after a judge-alone trial. After being beaten up by one of the victims earlier in the day, Mr. Rusha approached the victim and his friend as they were sitting in their car and stabbed them both in the upper leg. Mr. Rusha was sentenced to 30 months in custody on the aggravated assault count.

[18] Counsel for Mr. Mohammed provided cases in support of his position, some of which may be summarized as follows:

R. v. Ball, 2016 ONCJ 619: Mr. Ball was convicted of aggravated assault. The victim started a verbal confrontation with Mr. Ball and his friend at a homeless shelter. The victim invited Mr. Ball and his friend to fight him off shelter property. Mr. Ball and his friend followed the victim outside. The victim threw the first punch and the parties began to fight. Within two seconds of the start of the fight, Mr. Ball stabbed the victim in the chest with a steak knife. Mr. Ball was sentenced to 12 months in custody and 3 years’ probation. Mr. Ball’s mental health issues, among other factors, justified a sentence below the usual range for this type of assault.

R. v. Gajraj, 2013 ONSC 1401: Mr. Gajraj was convicted of aggravated assault by a jury. Mr. Gajraj and the victim had both been drinking. During an argument that took place during a telephone call, the parties agreed to meet at a local school and fight. During their fistfight, Mr. Gajraj pulled a knife from his pocket and slashed the victim’s hand and stabbed him in the abdomen. Both wounds were deep and required stitches. Mr. Gajraj was sentenced to two years less a day. Mr. Gajraj was a youthful offender with no record.

R. v. Rocchetta, 2016 ONCA 577: Mr. Rocchetta was convicted of aggravated assault. The victim was teasing one of Mr. Rocchetta’s friends. Mr. Rocchetta’s brother (also prosecuted on the same indictment) confronted the victim and an argument ensued. When one of the victim’s friends sought to intervene, Mr. Rocchetta’s brother struck him in the face once, knocking him unconscious. The victim fled and was pursued by Mr. Rocchetta’s brother. Mr. Rocchetta then intervened, punching the victim in the face. The blow caused a serious eye injury to the victim, rendering him virtually blind. Mr. Rocchetta was sentenced to 21 months in custody and 3 years’ probation. The Court of Appeal lowered the sentence to nine months’ imprisonment and held that the sentencing judge had failed to advert to the principle of restraint. Mr. Rocchetta was a youthful first offender and his offence was described as an “aberration” in an otherwise law-abiding life. The shortened sentence would still meet the principles of denunciation and deterrence.

R. v. Chan, 2010 ONCA 650: Mr. Chan was convicted of aggravated assault for his role in a “sudden, vicious” gang attack on the victim. The Court of Appeal upheld the one-year sentence imposed by the trial judge.

R. v. Chickekoo, 2008 ONCA 488: Ms. Chickekoo was convicted of aggravated assault after trial by judge alone. Ms. Chickekoo was drinking with a group of people when a fight broke out. Ms. Chickekoo smashed a beer bottle over the victim’s head. The victim suffered severe lacerations to her face that required 100 stitches. She also suffered other forms of lasting damage, including scarring, loss of feeling on the right side of her face, and chronic facial pain and headaches. The Court of Appeal upheld the sentence imposed by the trial judge of 18 months in custody and 2 years’ probation.

[19] In light of these legal principles, I will now turn to a consideration of the fit sentence.

The Fit Sentence

[20] In coming to my conclusion regarding the fit sentence, I consider the following to be the aggravating factors:

a. Mr. Mohammed’s actions were premeditated. The attack was organized and violent. He arranged for the assistance of two others to commit the attack. All were armed with weapons.

b. The victim was essentially swarmed and stabbed while he was on the ground.

c. A knife was used. Surgery was required to remove the blade from the victim’s eye.

d. Mr. Mohammed fled following the incident, leaving the victim vulnerable.

e. The impact on the victim is obvious and significant.

f. The assault was an aggravated one, leaving the victim with scars that are a daily reminder of what happened to him. He lost permanent sight in his left eye. He also received several stitches to his left hand.

g. The victim’s daily functions are impaired by his injuries.

h. Mr. Mohammed has a criminal record, including an assault conviction.

[21] I consider the following to be the mitigating factors:

a. Mr. Mohammed is a young man.

b. Mr. Mohammed has the support of his family in the community.

c. Mr. Mohammed showed remorse in pleading guilty to this offence. He has accepted responsibility for his actions.

d. The plea of guilty provided certainty of result and saved court resources by not requiring a trial; therefore, relieving the victim of the burden of testifying.

e. Mr. Mohammed’s criminal record is minimal.

f. The conduct was motivated by the loss of Mr. Mohammed’s dog which led to a loss of judgment.

g. While incarcerated, Mr. Mohammed made use of his time by participating in programs such as anger management and how to manage stress. He also made efforts to improve his high school grades.

[22] This is a difficult case. This was an extremely serious offence, causing permanent damage and scars to the victim. Deterrence and denunciation are significant considerations in sentencing a person like Mr. Mohammed who has been found guilty of a serious offence. That said, I am also cognizant of the principles set out in R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.) at p. 296:

[I]t is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

[23] Since this is Mr. Mohammed’s first sentence involving incarceration, I am also mindful of the direction of Rosenberg J.A. in R. v. Borde (2003), 172 C.C.C. (3d) 225 (Ont. C.A.), at para. 3 that a “first penitentiary sentence should be as short as possible”. This is Mr. Mohammed’s first jail sentence of any significance. That said, the jump principle is not applicable due to the severity of the offence.

[24] Mr. Mohammed’s plea of guilt is important, not only because it saved resources in a post-Jordan era, but because it is saving resources at a time the court will be dealing with cases not reached due to the COVID-19 pandemic. The saving of court time in these circumstances is significant.

[25] After having considered the facts giving rise to the conviction, the personal background of Mr. Mohammed and the law, I have concluded that the following sentence is appropriate: 40 months’ imprisonment.

[26] Mr. Mohammed is entitled to a reduction in sentence for a variety of reasons.

a. The Summers Credit

[27] Mr. Mohammed will be given credit for time spent in pre-sentence custody in accordance with s. 719(3.1) of the Criminal Code and R. v. Summers. Mr. Mohammed was arrested and incarcerated as follows:

Date of Arrest	Date of Release	Number of Days in Custody
April 10, 2018	April 13, 2018	4 days
April 20, 2018	April 21, 2018	2 days
July 25, 2018	December 21, 2018	150 days
August 15, 2020	October 1, 2020	48 days
Total:		204 days

[28] Enhanced at 1.5 days for each day spent in pre-sentence custody, Mr. Mohammed will be given credit for 302 days or 10 months.

b. The Duncan Credit

[29] In certain circumstances, particularly when harsh conditions prevailed during pre-sentence incarceration, mitigation greater than the 1.5 days’ credit as set out in s. 719(3.1) of the Criminal Code may be appropriate. In considering whether any enhanced credit should be given, the court will consider the conditions of the pre-sentence custody and the impact of those conditions on the defendant. If the court finds that there is an adverse effect on the defendant flowing from the pre-sentence conditions, the sentence can be reduced further to reflect the added mitigation for the conditions of the pre-sentence incarceration. R. v. Duncan, 2016 ONCA 754, at paras. 6 and 7

[30] During his six-month period of incarceration, Mr. Mohammed was subject to 39 days of lockdown in the facility (26% of the time he spent in custody). He was not responsible for any of the lockdowns. He was not reprimanded during this time. All lockdowns were the result of staff shortages.

[31] Mr. Mohammed submits (in an affidavit) that he was impacted physically and mentally as a result of the lockdowns. He describes the following during lockdown:

a. Limited access to showers, leaving him feeling “dirty, smelling awful and unhygienic”. This had an effect on his confidence and dignity.

b. There was a lack of access to laundry. As such, Mr. Mohammed washed his own clothes and used the same towel 12 days in a row.

c. When laundry was provided, some articles of clothing went missing. Bedding was returned with urine and feces stains.

d. Phone privileges were suspended during some lockdowns. This prevented access to family, his girlfriend and lawyer.

e. Lockdowns led to the inmates feeling frustrated, increasing the number of violent incidents.

[32] Both counsel agree that Mr. Mohammed has suffered some hardship as a result of the circumstances of his incarceration. They also agree that Mr. Mohammed should be given credit of one day for each day he spent in lockdown. I agree. As such, Mr. Mohammed will be given additional credit of 40 days [I have rounded this number from 39 to 40 days.] pursuant to the principles set out in R. v. Duncan.

The Downes Credit

[33] In R. v. Downes, the Court of Appeal for Ontario held that, where an accused is the subject of “stringent pre-trial bail conditions”, including time spent effectively under “house arrest,” this mitigating circumstance must be taken into account and given some weight in the sentencing of the accused.

[34] The Court of Appeal, in R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, gave some guidance as to what weight, if any, should be given to the pre-sentence bail conditions. In order to get credit, the bail conditions should create a hardship or deprivation to the person. I find that the conditions did so, to some extent, in this case.

[35] At the time of sentencing, Mr. Mohammed had been on bail for almost 18 months (536 days). He describes the conditions of his bail as follows:

a. That he had been on electronic monitoring. His family spent approximately $10,000 for such monitoring.

b. He has not been able to seek employment due to the conditions of his house arrest and with electronic monitoring. (Prior to his arrest, he was an auto mechanic.)

c. To improve his education, Mr. Mohammed enrolled in the Yorkdale Adult Learning Centre. For the first five weeks, his mother and surety had to accompany him and sit in his classes (before a bail variation). This put a strain on his relationships.

d. He had a child on September 24, 2019. Because his mother did not approve of him having this child, his mother (being his surety) curtailed visits between Mr. Mohammed and his newborn daughter. This made being a new father difficult for Mr. Mohammed.

[36] Crown Counsel agrees that Mr. Mohammed should be given credit for the time he spent subject to harsh bail conditions and agreed that 1/3 of his time should be credited for that purpose. Up to August 15, 2020 (when Mr. Mohammed was re-arrested and incarcerated), Mr. Mohammed would have been subject to restrictive terms of release for 624 days (20.8 months). As such, Mr. Mohammed will be given credit of 7 months pursuant to the principles set out in R. v. Downes.

Conclusion

[37] In conclusion, Mr. Mohammed is sentenced to a global sentence of 3 years, 4 months (40 months) less 18 months, 10 days leaving a further 21 months, 21 days to serve.

[38] The following ancillary orders are granted:

a. A section 109 order which prohibits the possession of any firearm, crossbow, restricted weapon, ammunition and explosive substance for 10 years, and which prohibits the possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life; and

b. An order that Mr. Mohammed provide a suitable sample of his DNA.

Kelly J.

Released: October 01, 2020

R. v. Mohammed, 2020 ONSC 4337

Case Summary