COURT FILE NO.: 2092/20
DATE: 20210201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Isaiah Norlyn Simmons
Defendant
D. Nicol, for the Crown
J. Zita, for the Defendant
HEARD: November 26, 2020, Jan 18, 2021
desotti, j.
A. Background
[1] The accused comes before me for sentencing having plead guilty to three counts on a twelve count indictment as follows:
Count #1 - That on or about the 21st day of November, in the year 2019, at the city of Sarnia, and in the province of Ontario, did traffic a substance included in Schedule 1 to wit: cocaine contrary to s. 5 (2) of the Controlled Drugs and Substance Act.
Count #7 - That on or about the 21st day of November, in the year 2019, at the city of Sarnia, in the Province of Ontario, did possess a loaded prohibited firearm, without being the holder of a licence under which he may possess the firearm in that place contrary to s. 95 (1) (a) of the Criminal Code of Canada.
Count # 9 – That on or about the 21st day of November, in the year 2019, at the city of Sarnia, in the Province of Ontario, did have in his possession a prohibited firearm while he was prohibited from doing so by reason of an order made pursuant to s. 109 (2) contrary to s. 117.01 (1) of the Criminal Code of Canada.
[2] The accused has spent to February 1st, 2021, 440 real days in pre-sentence custody and with enhanced credit 660 days in total.
[3] With respect to pre-sentence custody, counsel for the accused seeks additional time to be credited in pre-sentence custody based on 45 lockdowns and the fact that the accused was in custody from March 16th, 2020 to February 1st, 2021, while a pandemic threatened the jailed community.
[4] It should be noted that the accused is more susceptible to the symptoms associated with this Covid-19 virus as a result of his asthma condition, as reflected in his enclosed medical history.
[5] Counsel for the accused is suggesting .5 for the time spent in pre-sentence custody for the pandemic and a 1-1 credit for the 45 days reflecting the partial lockdowns.
[6] From March 16th, 2020 to February 1st, 2021, this would mean a total of 322 days or a credit (at .5) of 161extra days. With the 45 days suggested for the partial lockdowns that would total 206 days (161 + 45).
[7] I am not prepared to give any additional credit for the partial lockdowns. While I consider them troubling, I do not consider these partial lockdowns as a requisite of additional credited time in pre-sentence custody.
[8] With respect to pre-sentence custody as the pandemic rages, I do consider that some additional credit should be given to the accused. Prisons and jails have a more critical reality in this pandemic making them more susceptible to spreading this virus.
[9] However, I choose to credit this time by a third and not the half as suggested by counsel for the accused. In the result, the total time that the accused is credited is 660 days plus a further 107 days or a total of 767 days to be credited.
[10] The accused has really had a difficult life, both as part of submissions of counsel and reflected in the pre-sentence report but also highlighted by the letter of his father.
[11] Each gun case turns frankly on its own offence specific and offender specific facts, however, in every decision the paramount consideration is deterrence and denunciation. Counsel for the accused submits that a sentence of 4 and ½ years would be appropriate while counsel for the Crown seeks a sentence of 7 years.
B. Analysis
[12] The aggravating factors are as follows:
a) The accused was involved with the selling of drugs at the time that he possessed the restrictive loaded firearm. He held this restrictive weapon to protect himself as he had been robbed;
b) The accused had already been convicted of an offence of restricted firearm possession and was under a s.109 order when these offences occurred;
c) There was a preliminary hearing before the accused eventually entered into guilty pleas;
d) The accused has already served a 19 month and 15 days sentence for carrying a concealed weapon;
e) He has a drug and alcohol dependency.
[13] Some mitigating factors are as follows:
a) The accused is educationally challenged;
b) He was raised by his great aunt and was not brought up by his mother or father although he has a good relationship with both and his siblings as well;
c) He has a relationship with his partner (Ms. Wilson) who together have a little boy who is three years of age. Additionally, he has a 5 year old son from a previous relationship;
d) There are three letters of support in the file, one from his father, one from his mother and the other from his partner;
e) He has not sought any employment training but is willing to learn how to be a full-time truck driver (his AZ licence).
[14] The range of sentencing for the possession of firearms is as stated a determination predicated on the circumstances of the offence and that of the offender. Counsel have provided me with many cases reflecting precisely this diversity in sentencing options.
[15] What is most troubling is that with substance abuse problems, and a serious previous sentence with a prohibition from the possession of firearms, the accused is oblivious to the peril that he would face if again apprehended for similar offences.
[16] We have precisely this reality before the court. Possessing a firearm while selling drugs is a recipe for death or injury to the accused, unsuspecting buyers of drugs, criminals that are intent on depriving the accused of money or drugs, or the public who may unwittingly be present when the potential mayhem begins.
[17] In the result, the accused is sentenced to 4 years incarceration on count #7, 1 year incarceration on count #1, consecutive to count #7, and 1 year incarceration on count # 9, consecutive to count #7 and count #1. The total period of incarceration is thus 6 years.
[18] The accused is credited with 767 days of pre-sentence custody or 2 years and 1 month and 7 days for a net sentence of 3 years 10 months and 23 days of incarceration.
[19] I obviously recommend substance abuse counselling during this period of incarceration.
[20] The Ancillary Orders are as follows:
There will be an order pursuant to s. 109 of the Criminal Code for life;
There will be a DNA data bank sample provided;
There is a forfeiture order as per the Crown’s draft copy, and the signed order.
The Honourable Mr. Justice John A. Desotti
Released: February 1, 2021
COURT FILE NO.: 2092/20
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Isaiah Simmons
REASONS FOR JUDGMENT
Desotti, J. SCJ
Released: February 1, 2021