COURT FILE NO.: CR-21-30000378-0000 DATE: 20231130 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING - and - ASVIN SAHADEVAN and RAJKUMAR SOOKDEO
P. Rutherford, for the Crown R. Kodsy, for Mr. Sahadevan HEARD: June 6, 2023 and November 22, 2023
M. Forestell J.
REASONS FOR SENTENCE OF ASVIN SAHADEVAN
Overview
[1] Asvin Sahadevan entered a guilty plea on June 6, 2023 to charges of possession of a loaded restricted firearm and possession of a firearm while prohibited.
The Circumstances of the Offences
[2] The circumstances of the offences are that on January 10, 2021, Mr. Sahadevan and his friend were stopped by police in a car driven by Mr. Sahadevan in a residential area. A search of the car revealed a loaded firearm under the passenger seat. Mr. Sahadevan was subject to a firearms prohibition at the time.
[3] Mr. Sahadevan’s explanation for his possession of the firearm was that he had taken it from an acquaintance who was intoxicated and presented a danger to others. He acknowledged, however, that he did not attempt to turn the gun over to the police and that his possession of it was unlawful and unjustified.
Circumstances of Mr. Sahadevan
[4] Mr. Sahadevan is 24 years old. He was 21 years old at the time of the offences. He has a youth record from 2018 for aggravated assault for which he received a disposition of six months’ community supervision and one-year probation. He has convictions for three counts of failing to comply and one count of weapons dangerous that post-date this offence.
[5] Mr. Sahadevan is single and lives with his mother. He has been in a relationship for the past year.
[6] Mr. Sahadevan had a very difficult childhood and adolescence. As set out in the pre-sentence report, Mr. Sahadevan suffered physical and emotional abuse at the hands of his father. He was repeatedly physically assaulted by his father, and he witnessed the physical abuse of his mother and sister. His father also deprived Mr. Sahadevan and his mother and sister of heat and hot water. His father consistently undermined Mr. Sahadevan. Eventually, when Mr. Sahadevan was 15 or 16 years old, he, his mother and his sister moved to Oshawa, away from Mr. Sahadevan’s father.
[7] Mr. Sahadevan struggled in school. He was bullied in elementary school and was frequently in fights. In spite of frequent suspensions, Mr. Sahadevan completed all but one of his high school credits.
[8] He has had employment since age 13 when he worked at his father’s cleaning business. He is currently employed at an automotive service center and is in training to become a manager.
[9] Mr. Sahadevan has experienced serious mental health issues. After being charged with these offences, Mr. Sahadevan became depressed, abused alcohol and attempted suicide on two occasions. He was hospitalized on both occasions. Mr. Sahadevan’s mental health issues led to two convictions for breaches of his recognizance and to a conviction for weapons dangerous.
[10] Mr. Sahadevan is not currently seeing a psychiatrist, but he reported to the probation officer that his mental health has improved since he has made positive lifestyle choices. He has avoided negative peers and he has stopped abusing alcohol.
[11] Mr. Sahadevan recently completed 12 sessions of the Positive Lifestyle program with the Salvation Army Courthouse Chaplain. The goal of the program is for the participant to gain insight and personal awareness and to focus on areas of difficulty. Ms. Tansey provided a letter that indicates Mr. Sahadevan worked hard to complete the program and that he showed insight.
Positions of the Parties
[12] The Crown seeks a global sentence of imprisonment of 18 months before credit for 11 days of pre-sentence custody, to be followed by probation for two years. The Crown also seeks a DNA order and a s. 109 firearms prohibition for life.
[13] Counsel for Mr. Sahadevan submits that a conditional sentence of 18 months should be imposed to be followed by two years’ probation.
The Appropriate Sentence
[14] The fundamental purpose of sentencing is to foster respect for the law and to maintain a just, peaceful and safe society. The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In arriving at an appropriate sentence, I must consider any aggravating and mitigating circumstances.
[15] In this case, the aggravating factors are that the gun was in a vehicle in a residential neighbourhood and that Mr. Sahadevan had a youth record at the time of the offences.
[16] Mitigating factors are that Mr. Sahadevan had an extremely difficult childhood and suffered physical and emotional abuse; that he has mental health challenges; and that he has been steadily employed and is helping to support his mother.
[17] A very important mitigating factor in this case is Mr. Sahadevan’s guilty plea. There were triable issues in this case and the plea is indicative of real remorse.
[18] Another mitigating factor is that Mr. Sahadevan has been on house arrest for 34 months. He did breach the conditions, but two of the three breaches resulted from serious mental health crises and the third was a minor breach.
[19] There is no question that the crime of possessing a loaded restricted firearm is extremely serious. The Court of Appeal for Ontario has repeatedly identified the seriousness of firearms offences in the Toronto area. [1]
[20] It is well-settled law that, in sentencing for firearms offences, denunciation, deterrence, and the protection of the public are the primary sentencing objectives. Generally, exemplary sentences are required for these offences. [2]
[21] In R. v. Nur, the Court of Appeal noted at para. 51 that the criminal offence of possession of a loaded firearm without a license, ranges in gravity from "an outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade" to an otherwise law-abiding gun owner who has failed to obtain the proper license to possess the firearm. One important factor in assessing the seriousness of the circumstances of the offences within this spectrum is the degree of risk or danger to the public.
[22] In R. v. Smickle, the Court of Appeal held that the appropriate sentence for Mr. Smickle was two years less a day, but also noted at para. 19 that "most s. 95 offences will attract a penitentiary term even for first offenders". Mr. Smickle’s possession of the loaded handgun was described as “somewhat less serious than the typical s. 95 offence”. Mr. Smickle possessed and brandished the handgun within an apartment unit, creating a real risk to the occupants of neighbouring units and to himself in the event of an accidental discharge. The Court in Smickle held that the circumstances supported a sentence at or very near the maximum reformatory sentence.
[23] The circumstances of the possession of the firearm in Mr. Sahadevan’s case similarly place the level of seriousness near the lower end of the spectrum of seriousness.
[24] I agree with both the Crown and defence that the incarceration of Mr. Sahadevan in the penitentiary is not necessary to achieve the relevant sentencing objectives. I am satisfied that a sentence of imprisonment of less than two years would be fit, given the exceptional circumstances of the offences and of the offender.
[25] The remaining issue is whether a conditional sentence should be imposed. A conditional sentence may be imposed where: a fit sentence is one of less than two years; having the offender serve the sentence in the community would not endanger the community; and such a sentence would be consistent with the purpose and principles of sentencing.
[26] The Crown opposes a conditional sentence in this case. The Crown submits that a conditional sentence cannot achieve the sentencing objectives of denunciation and deterrence. The Crown also points to the breaches of the house arrest bail.
[27] The Court of Appeal for Ontario, in R. v. Morris, [3] reiterated that crimes involving the possession of loaded handguns would usually require the imposition of a term of real imprisonment. However, the Court went on to consider the principle of restraint, writing at paragraphs 125-127:
125 The requirement of a sentence of imprisonment does not, however, end the operation of the restraint principle. That principle requires the court, if it determines that a sentence of less than two years imprisonment would be appropriate, to consider whether the term of imprisonment could be served in the community under a conditional sentence: Criminal Code, s. 742.1. The restraint principle favours conditional sentences over incarceration if a conditional sentence is consistent with the proportionality principle: see R. v. R.N.S., 2000 SCC 7, [2000] 1 S.C.R. 149, at para. 21.
126 After Nur struck down the mandatory minimum, a conditional sentence is statutorily available for offences under s. 95. As persuasively laid out in Anderson (NSCA), a carefully fashioned conditional sentence that is responsive, both to the needs of denunciation and deterrence and the rehabilitative potential of the offender, can, in some situations, be a fit sentence for a s. 95 offence: see also R. v. Shunmuganathan, 2016 ONCJ 519; R. v. Dalton, 2018 ONSC 544.
127 A conditional sentence, like that described in Anderson (NSCA), at paras. 126-41, can only be available if counsel provides the court with the information needed to warrant the imposition of a conditional sentence. Not only must the information speak to the offender's circumstances, it must include proposed terms which will meaningfully address the need for deterrence, denunciation, and ongoing supervision of the offender. The information provided by counsel on sentence must give the sentencing judge reason to believe the offender is committed to the terms of the proposed conditional sentence.
[28] The presentence report in this case describes the impact of domestic abuse upon Mr. Sahadevan. Mr. Sahadevan had no appropriate male role model growing up. His educational opportunities were impacted by his father’s abuse. His emotional well-being and self-esteem were seriously affected by his family circumstances. These are significant factors that are relevant to Mr. Sahadevan’s degree of personal responsibility for the offences. The report also speaks to the changes to Mr. Sahadevan’s lifestyle and circumstances during the last three years.
[29] In the exceptional circumstances of these offences and this offender, I have concluded that a conditional sentence should be imposed on Mr. Sahadevan.
[30] In reaching this conclusion, I have considered the breaches to Mr. Sahadevan’s release. As I have already described, two of those breaches were triggered by mental health crises and third was minor. I have also taken into account that one of the charges upon which Mr. Sahadevan is being sentenced is a breach of a prohibition order. While all of these factors must be considered, I have weighed them against the progress that Mr. Sahadevan has made over the past three years. I conclude that a conditional sentence would not endanger the public and is consistent with the fundamental purposes and principles of sentencing. A conditional sentence will allow Mr. Sahadevan to continue the process of rehabilitation that has already begun. He can continue his employment and he can continue his relationship. In addition, he will be required to take counselling as directed by his conditional sentence supervisor.
[31] I am satisfied that the objectives of denunciation and deterrence can be advanced in this case by a lengthy and strict conditional sentence. A conditional sentence can be punitive and in this case I will impose a conditional sentence that is punitive. I will impose a sentence that is longer than the 18 month period of custody proposed by the Crown and longer than the conditional sentence proposed by counsel for Mr. Sahadevan.
[32] Taking into account the 11 days of presentence custody, credited at 1.5 to 1 or 17 days, I have concluded that a conditional sentence of 23 months should be imposed, to be followed by two years’ probation.
[33] I will impose house arrest for the first 14 months and a curfew for the last 9 months of the conditional sentence order.
[34] There will be a period of probation of two years following the conditional sentence. The probationary period will help to achieve the objective of rehabilitation by providing Mr. Sahadevan assistance in accessing ongoing support.
Order
[35] I therefore impose a global sentence of 23 months to be served in the community. The conditional sentence will be broken down as follows: 14 months for Count 1, possession of the loaded restricted firearm; and nine months consecutive for Count 10, possession of a firearm while prohibited, all to be served in the community.
[36] The terms of the Conditional Sentence Order are as follows:
(1) The mandatory statutory conditions as set out in section 742.3(1) of the Criminal Code, R.S.C., 1985, c. C-46.
(2) In addition to the statutory terms, it is ordered that he comply with the following conditions:
(a) To take such counselling as is recommended by his conditional sentence supervisor and sign any releases necessary for the conditional supervisor to monitor compliance with this condition;
(b) Not to possess any weapons as defined by the Criminal Code;
(c) For the first 14 months of the sentence, to be at his residence at all times, except for the following reasons:
(i) reporting to his supervisor;
(ii) attendance at school or his place of employment;
(iii) attendance at scheduled counselling, medical or dental appointments for himself or his immediate family;
(iv) dealing with any medical emergency affecting him or a member of his immediate family;
(v) a four-hour period once weekly, the precise time to be agreed upon by his supervisor, during which time he may attend to personal matters such as banking, shopping and household errands;
(vi) travel to and from any of these activities; and
(vii) at any other time with the prior written permission of the supervisor.
(d) For the remainder of the sentence, not to be away from his residence between 11:00 p.m. and 6:00 a.m., except for employment or in the event of a medical emergency affecting him or a member of his immediate family, or with the prior written permission of his supervisor.
[37] I further order that Mr. Sahadevan be placed on probation for a period of two years following his conditional sentence. In addition to the statutory conditions of the probation, the following conditions will apply:
(a) To report as required to a probation officer;
(b) To take such counselling as is recommended by the probation officer and sign any releases necessary for the probation officer to monitor compliance with this condition; and
(c) Not to possess any weapons as defined by the Criminal Code.
[38] I make the following ancillary orders:
(a) An order under s. 109(3) of the Criminal Code that Mr. Sahadevan is prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive device, for life;
(b) This is a secondary designated offence and, in my view, given the circumstances of the case, a DNA order is appropriate, and I make that order.
[39] In light of Mr. Sahadevan’s financial situation, the Victim Fine Surcharge is waived.
M. Forestell J.
Released: November 30, 2023
[1] R. v. Danvers, [2005] O.J. No. 3532, 201 O.A.C. 138; and R. v. Brown, 2009 ONCA 563
[2] R. v. Nur, 2013 ONCA 677 at para. 206; R. v. Smickle, 2014 ONCA 49, at para. 18