COURT FILE NO.: CR-20-09 (Kingston)
DATE: 20221220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ABDUL MOHIB MOHAMMAD
Defendant
Rebecca Edward, for the Crown
Mukesh Bhardwaj, for the Defendant
HEARD: 20 December 2022, at Kingston
MEW J. (ORALLY):
SENTENCING DECISION
[1] Abdul Mohammad, on 29 July 2022, following a seven day judge-alone trial, you were convicted of possessing a dangerous weapon, namely a knife and of the aggravated assault of Malik Downer, who you stabbed with a knife. These offences occurred in the early hours of 30 June 2018, outside a Kingston nightclub. They came after a series of interactions and skirmishes involving two groups of young men from Kingston (collectively the “Kingston group”) and the Greater Toronto Area (collectively the “Toronto group”) respectively.
[2] As a result of being stabbed, Mr. Downer’s left lung was punctured. While he eventually made a full physical recovery, he has been left with permanent scarring and, according to the pre-sentence report, what occurred has caused him emotional difficulty (there was no victim impact statement to assist the court).
[3] Aggravated assault, contrary to s. 268(2) of the Criminal Code, is punishable by a maximum sentence of imprisonment of fourteen years. This is the second highest maximum sentence available, suggesting that aggravated assault is, or at least can be, a very serious offence: R. v. Friesen, 2020 SCC 9, paras. 96-97. By virtue of s. 742.1(c) and (e)(i) a conditional sentence is not available. Nor is it available by virtue of the use of a weapon: s. 742.1(e)(iii). In addition, certain ancillary orders, such as requiring you to provide a sample of DNA, and a weapons prohibition order are mandatory for this offence.
[4] Possession of a weapon, contrary to s. 88(1) of the Criminal Code, is, when tried by indictment, subject to a maximum sentence of ten years’ imprisonment. So, it, too, is a serious offence.
[5] The Crown asks that the sentence given to you includes imprisonment for 18 months plus probation for two years. The defence submits that an appropriate sentence would be the time you have already served by way of pre-trial custody of 46 days (which if reckoned on the basis of 1½ days credit for each day served would be the equivalent of 69 days) and 1,153 days spent under house arrest conditions, plus probation for three years.
Circumstances of Offence
[6] The circumstances of the offence were described in some detail in my reasons for decision of 29 July 2022, so I will not repeat them at length again today. In considering my sentencing decision I have, though, taken all of them into account. I also have the Pre-Sentence Report prepared by Emily Osino.
[7] By way of an overview, at the end of a week during which you and a group of co-workers, all from the Greater Toronto Area, had been working in Kingston, you ended up outside a bar known as “The Spot” and The House of Donair restaurant. Video footage from The House of Donair security camera taken between 2:34 a.m. and 3:00 a.m. shows members of the two groups - the Kingston group and the Toronto group - in different combinations, moving around. There are a number of minor skirmishes and altercations between members of the groups. At 2:54:55 on the security camera timer, security personnel and a number of the other individuals who had been hanging out on the concrete pad in front of The House of Donair are seen moving quickly away from the camera. It was at that time that I concluded that the incident during which you stabbed Malik Downer occurred.
[8] By your own admission, during that time you had a face-to-face altercation with Isaac Pickins, who was a member of the Kingston group and who you alleged had spat in your face and made racist remarks to you. Indeed, you acknowledged that you punched Mr. Pickins. Before the stabbing, several witnesses had either seen you brandishing a knife or saying that you were going to stab, or “poke” someone with it.
[9] As to the stabbing itself, you and one or more other members of the Toronto group attacked Malik Downer. Witnesses saw you making stabbing motions during the course of the attack, and DNA taken from bloodstains on your clothing corresponded with Malik Downer’s DNA. The evidence did not disclose any particular reason for you to attack Mr. Downer. While you appear to justify your engagement with members of the Kingston group because one of them spat on your face and disrespected you with a racial comment, it has not been suggested that Mr. Downer attacked or disrespected you and, indeed, as you would have observed, Mr. Downer is himself a racialized person.
Circumstances of Offender
[10] I turn then to your circumstances. You have no criminal record. You are currently 25 years old. You were born in Afghanistan and immigrated to Canada with your family in 2005. You grew up in the Jane/Sheppard area of Toronto with your hard-working parents. You played soccer and avoided involvement with the gang and drug influences that were prevalent in your neighbourhood. You did not complete high school, preferring instead to go out to work. You have had a number of different jobs. The pre-sentence report indicates that you plan to go back to school and become an electrician.
[11] Your friends and family all regard the offences you have been convicted of as being completely out of character.
[12] You maintain your innocence of these offences which, of course, is your prerogative to do. However, when you addressed the court you apologised for your actions, saying you made poor decisions and that you regret it all.
[13] The pre-sentence report suggests that you have been raised in a stable home environment devoid of abuse or substance abuse, that you have expressed pro social values in terms of your connection to family and that you have a history of employment.
Aggravating and Mitigating Factors
[14] In terms of aggravating and mitigating factors which should inform my sentencing decision, an obvious aggravating factor is that what you did was extraordinary dangerous. As Detective Constable Dunstan indicated, what you did could have resulted in Mr. Downer’s death. Mr. Downer was in a vulnerable position, having been set upon by at least two if not more people, including yourself.
[15] The fact that others in the Kingston group may have been aggressive towards you is not a mitigating factor. You had a more than ample opportunity to remove yourself from the earlier jostling and engagement with that group. Indeed, you testified that you stepped away for a few minutes to call your mother shortly before Mr. Downer was attacked by you.
[16] Your lack of any criminal record is a significant consideration, as is the lengthy period of time – in excess of four years – during most of which you have been subject to restrictive bail conditions which required to you live at the family home and only go out in the presence of your brother. I was told that he is two years older than you and works intermittently as a general labourer. Mr. Bhardwaj advised the court that because of the bail restrictions you were not able to enrol in courses which would enable you to train as an electrician and you were not able to work. It was acknowledged, however, that no application was made to vary those bail conditions to enable you to study or work.
Sentencing Principles
[17] The general principles of sentencing are set out in section 718 of the Criminal Code. Judges passing sentence are required by law to impose a just sanction that has one or more of the following six objectives:
To denounce unlawful conduct;
To deter the offender and others from committing offences;
To separate offenders from society when necessary;
To assist in the rehabilitation of offenders;
To provide reparation for harm done to victims or to the community;
To promote a sense of responsibility in offenders and acknowledge harm done to victims and to the community.
[18] Section 718.2 of the Code sets out a number of circumstances which may aggravate the circumstances relating to the offence or the offender, none of which appear to apply in the present case. That section also provides that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment should be considered.
[19] As well, the sentence must be proportionate to the gravity to the offence and the degree of responsibility of the offender. The sentence must also be similar to those imposed on similar offenders, for similar offences, committed in similar circumstances.
Analysis
[20] As Madam Justice Roberts pointed out in R. v. Navarathinam, one of the cases referred to by Ms. Edward, the range of sentences for aggravated assault is very broad, with the bottom of the range including a non-custodial sentence, and the top of the range including sentences of 8 years.[^1]
[21] In the same case, Justice Roberts held that the rule against multiple convictions where the elements of the offences charged are essentially the same would not apply in circumstances where, as in the present case, the weapon in question was used not only to effect the aggravated assault but, also, was wielded as a weapon[^2] (and, in the present case, used to threaten others).
[22] The Crown referred me to a number of cases in which the sentences handed down range between 21 months (R. v. Kavinsky[^3], R. v. Tourville[^4] and R. v. Moreira[^5]) to 19.5 months (R. v. Clarke[^6]). Most of the reformatory sentences included, in addition, terms of probation following completion of the custodial element.
[23] The defence places great emphasis on your lack of any criminal history and your strong family support.
[24] The authorities referred to me by the defence include cases where sentences for aggravated assault have ranged from a suspended sentence and three years’ probation (R. v. Hunter),[^7] four months followed by two years’ probation (R. v. Berry),[^8] and nine months followed by three years’ probation (R. v. Rocchetta).[^9] Reference was also made to R. v. White,[^10] in which a suspended sentence was imposed. In my view that case, which involved intimate partner abuse, was exceptional and of limited assistance in this matter.
[25] A number of the cases provided to me by counsel refer to ranges of sentences summarised by Mr. Justice Code in R. v. Tourville (while noting that in the ensuing years since that case was decided, the ranges have widened):[^11]
a. At the bottom end are what are described as “exceptional” cases like R. v. Peters,[^12] [and R. v. White, to which I just made reference] where an indigenous offender received a suspended sentence and three years’ probation on her guilty plea to aggravated assault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar room dispute, causing serious facial lacerations to the victim. The Gladue report disclosed a very difficult upbringing in a violent and abusive home, leading to alcoholism and drug abuse. By the time of sentencing, she had obtained employment and was making real progress in counseling for her substance abuse problems.
b. In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force.
c. At the high end of the range are cases where four to six years’ imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve "unprovoked" or "premeditated" assaults with no suggestion of any elements of consent or self-defence.
[26] It seems to me that the circumstances of this case fall closest to the mid-range. You are a first-time offender. Your involvement in this incident appears to have been out of character and not pre-meditated. The group dynamics in the half hour or so before you stabbed Mr. Downer did involve elements of verbal and physical jostling between the two groups, although it does concern me that there was no particular reason for you to have picked on Mr. Downer.
[27] Nor can I ignore the fact that the outcome, in terms of Mr. Downer’s injuries, could have been much more serious. Furthermore, when it comes to cases of aggravated assault with a weapon, the factors of denunciation and deterrence are paramount. As Mr. Justice Leach observed in R. v. Kavinsky, and I quote from paragraphs 51 and 52 of his decision:
51 The community must not think that carrying knives to social functions, and using them to resolve differences when conflict occurs, is generally something that will be taken lightly, regardless of the potentially lethal consequences, provided the offender is young, has no prior criminal record, regrets his or her conduct after the fact, and seems unlikely to reoffend once confronted with the tragic consequences of such stupidity.
52 To the contrary, the community, and young people in particular, should know that carrying readily accessible knives to social functions creates extraordinary risks, with potentially very serious consequences, and that such conduct will be dealt with sternly when such knives are used, with predictably tragic results. All concerned need to factor that into their decision making, and hopefully take the smart and sensible course of leaving knives alone or at home.
[28] The pre-sentence report is largely positive. The concern, implicit from the pre-sentence report, that you have not accepted responsibility for your behaviour, has to be seen in the context of your continued denial that you committed these offences. It is important that you understand that this is not regarded as an aggravating factor in the sentencing decision.
[29] You were 21 at the time of the incident. That, together with your first-time offender status invites consideration of the restraint principle as applied to young first offenders facing a period of incarceration. In R. v. Rocchetta, the Court of Appeal, at para. 35, explained the application of that principle in these terms:
That principle, reflected in s. 718.2(d) and (e) directs that a first period of incarceration imposed on a young first offender should be as short as possible while giving adequate weight to the principles of general deterrence and denunciation: R. v. Hayman (1999), 1999 CanLII 3710 (ON CA), 135 C.C.C. (3d) 338 (Ont. C.A.) at para. 22. The restraint principle should have been one of the primary considerations in fixing the appropriate period of incarceration.
[30] For three years you have lived under house-arrest type conditions. However, there is no indication that you sought a variation of the strict conditions you were under in order to take up education or employment. I do not accept, as submitted on your behalf, that you should be credited the equivalent of one day in prison for every three days you spent under house arrest. Rather, the approach to be taken is, as the Court of Appeal stated in R. v. Joseph,[^13] to consider as mitigation the amount of time spent on bail conditions, the stringency of those conditions, their impact on your liberty, and your ability to carry on normal relationships, employment and activity.
Decision
[31] Given the length of time that it has taken to get to this point, some of the delay being attributable to Covid-19, including a period of time where because of your wish to exercise your right to a trial by judge and jury, the court was not able to offer you a trial date, and having regard to my conclusion that the circumstances of the offence place it in the mid-range described by Justice Code in R. v. Tourville, but also applying the restraint principle, I have concluded that a fit sentence in your case is a term of imprisonment of nine months, followed by two years’ probation. You will get credit for the equivalent of 69 days of pre-trial custody.
[32] Mr. Mohammad, please stand.
[33] On the charge of aggravated assault, I sentence you to a term of imprisonment of nine months.
[34] On the charge of possessing a weapon, I sentence you to a term of imprisonment of six months, to be served concurrently with the nine-month sentence.
[35] A DNA order under 487.051 of the Criminal Code is mandatory, as is a ten-year weapons prohibition under s.109.
[36] In addition, following the completion of the custodial element of your sentence, you will be on probation for a further two years, the terms of which, in addition to the statutory conditions, will be that you:
a. Report to a probation officer within two working days of your release from custody;
b. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with Malik Downer and Tyrrell Downer;
c. Do not be within 100 metres of any place where you know any of the persons named above to live, work, go to school, frequent or any place you know the persons to be, except for required court attendances;
d. Do not possess any weapon(s) as defined by the Criminal Code (for example, a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).
[37] Good luck Mr. Mohammad. I hope we do not see you in a courthouse again.
Mew J.
Handed down (orally): 20 December 2022
COURT FILE NO.: CR-20-09 (Kingston)
DATE: 20221220
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
ABDUL MOHIB MOHAMMAD
sentencing DECISION
Mew J.
Handed down (orally): 20 December 2022
[^1]: [2021] O.J. No. 3225, 2021 ONSC 4241 at paras. 28-29
[^2]: R. v. Navarathinam, paras. 9-11
[^3]: [2017] O.J. No. 3261, 2017 ONSC 3792
[^4]: [2011] O.J. No. 1245, 2011 ONSC 1677
[^5]: [2006] O.J. No. 1248, 2006 CanLII 9709 (ON SC)
[^6]: [2014] O.J. No. 4437, 2014 ONSC 5346
[^7]: 2015 ONSC 325
[^8]: 2015 ONSC 2560
[^9]: 2016 ONCA 577
[^10]: 2014 ONSC 2876
[^11]: 2011 ONSC 1677 at para.27
[^12]: 2010 ONCA 30
[^13]: 2020 ONCA 733, at para. 108