R. v. Shakib and Nandan Date:, 2014 BCPC 90

Citation: R. v. Shakib and Nandan Date: 20140410 2014 BCPC 0090 File No: 192824-5-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAKIB ABDIRIZ SHAKIB and BRANDON SHIU NANDAN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: R. Bonner, Q.C., A. Jantunen Counsel for S. Shakib : L. Myers, Q.C., J. Allingham Counsel for B. Nandan : I. Donaldson, Q.C., C. McLeod

Place of Hearing: Surrey , B.C. Date of Hearing: March 28, 2014 Date of Judgment: April 10, 2014 [ 1 ] THE COURT : On December 5th of 2013, Shakib Abdiriz Shakib and Brandon Shiu Nandan pled guilty to the charge on Information 192824-5-C that on November 28th, 2011 at Surrey, British Columbia, they committed manslaughter of Branson Kerick Rendell Sanders, contrary to s. 236 (

b) of the Criminal Code . [ 2 ] Following submissions of counsel on March 28th, 2014, they are before the court today to be sentenced. There is a joint recommendation before this court from all counsel that each offender receives a sentence of six years' imprisonment, less credit for pre- sentence custody. Counsel for Mr. Nandan seeks enhanced credit for pre-sentence custody beyond one-for-one credit pursuant to s. 719(3.1) of the Criminal Code . Mr. Shakib seeks no more than the one-for-one credit provided for in s. 713(3). The Crown opposes any enhanced credit.

The Crown seeks ancillary orders for DNA sampling and firearms prohibitions which are not contested. [ 3 ] These proceedings began before me in October of 2013 as a preliminary inquiry on a charge of first degree murder. The guilty pleas were entered following the close of the Crown's case but before submissions for committal. [ 4 ] The circumstances are set out in the Crown's statement of argument filed as Exhibit 8 on the sentencing, which incorporates admissions filed during the preliminary inquiry and now marked Exhibit 1 on the sentencing.

For purposes of this sentencing hearing I will summarize the circumstances as follows: [ 5 ] Brandon Nandan and Branson Sanders knew each other in Burnaby where they both lived while growing up and into their high school years. In the summer of 2011 the Nandan family moved to Cloverdale and to the residence on 55th Avenue where the events leading to Mr. Sanders' death occurred. Between Friday, November 25th of 2011 and Tuesday, November 29th of 2011, Brandon Nandan's parents were away from home in Edmonton.

Brandon Nandan and his brother Cameron remained behind in the family home. [ 6 ] Brandon Nandan and Branson Sanders had become involved in drug dealing. Mr. Nandan intended to confront Branson Sanders over an issue related to drug trafficking. In his submission filed on sentencing and marked now as Exhibit 17, Mr. Nandan said Mr. Sanders was using cocaine and became more aggressive and not treating the drug clientele right, and Brandon Nandan intended to discuss this with Branson Sanders at the Nandan residence while his parents were away. [ 7 ] Mr. Nandan said he only intended to inflict a minor beating.

Those words are also contained in that submission. The relatively benign characterization of this encounter as a discussion or even a minor beating is not consistent with the tone of events leading up to and immediately before Mr. Sanders' death. At a minimum, this was to be an intimidating and threatening encounter for Mr. Sanders, with an expectation violence might be used. [ 8 ] In their statement of argument, Crown counsel outlined a series of text messages and phone exchanges between Brandon Nandan, his brother Cameron, a cousin, and Mr.

Shakib beginning November 24th, 2011 and leading up to the timeframe of the attack on Mr. Sanders. They demonstrate that Brandon Nandan was developing a game plan to deal with Mr. Sanders and to arrange for Mr. Shakib's presence when that occurred, and that Mr. Sanders not be alerted to the situation that was developing. Over this time period, and with their parents away, several friends of Cameron Nandan spent time at the family home with him. During this period, Brandon Nandan and Mr. Sanders were also at the home from time to time.

At one point a phone belonging to a female friend of Cameron Nandan went missing and Mr. Sanders was accused of taking it. A fight began between Mr. Sanders and Brandon Nandan, which was broken up, and the issue seemed to pass. [ 9 ] On the evening of November 27th, 2011, Brandon Nandan made arrangements for Mr. Shakib to travel to Surrey and to be met by Cameron Nandan and then to come to the residence. Text messages filed as Exhibit 3, evidence at the preliminary inquiry and exhibits filed on sentencing demonstrate that while Brandon Nandan occupied Mr. Sanders upstairs, Mr.

Shakib entered the residence by a door into a downstairs suite where he remained, his presence apparently unknown to Mr. Sanders. [ 10 ] As events progressed, someone was heard coming down the stairs. Cameron Nandan told one of his friends to go into the washroom. Mr. Shakib entered the washroom as well. Mr. Sanders was then heard asking to use the washroom. He was told it was in use. Cameron Nandan's friend, in the washroom with Shakib, saw Shakib remove a machete from his jacket.

At Shakib's request, the friend in the washroom sent Brandon Nandan a message telling him to ask Sanders to go back upstairs. [ 11 ] Shortly after Cameron Nandan told them to come out of the washroom, Mr. Sanders was no longer downstairs. Cameron Nandan's phone then texted Brandon Nandan's phone, saying "Yo, if he's comin' down where we are, buddy gonna juk him," which I understand to mean stab him.

And further, "Don't be in front of him." And a further message, "Buddy said you taking too long." Brandon Nandan replied, "I'm trying to get him passed out." This exchange occurred over approximately three minutes. [ 12 ] Branson Sanders then came downstairs again. He was seen looking through the partially-open door at the foot of the stairs. Mr. Shakib was positioned against the wall, out of Mr. Sanders' line of sight, holding the machete. He then lunged through the door and thrust the machete in Mr. Sanders' direction. Wrestling could be heard. About ten seconds later Mr.

Sanders was heard saying, "Please, bro, I'm gonna bleed out." He called the name "Brandon" three times. Wrestling sounds continued. Brandon Nandan was heard saying words to the effect, "What the fuck? What the fuck?" Wrestling sounds continued for another 20 seconds. [ 13 ] Assertions that Mr. Shakib brought the machete simply as a form of intimidation are tenuous and suspect in these circumstances. [ 14 ] When Cameron Nandan's friend ran upstairs, he observed Brandon Nandan and Mr. Shakib at the bottom of the stairs with

blood on their clothing and on the walls. Thereafter, Cameron Nandan's friend was told by Brandon Nandan that he would not get a ride home until they assisted in cleaning up. During the clean-up, the friend observed Mr. Sanders' arm protruding from a garbage bin at the bottom of the stairs. The clean-up involved cleaning blood from the wall and removing carpet and hardwood where blood was present.

Brandon Nandan participated in the clean-up. [ 15 ] On December 2nd, 2011 at 8:45 a.m. a person walking in the area of Elwell Street and Fareham Avenue in Burnaby discovered burned human remains which were identified by fingerprints to be those of Branson Sanders. An autopsy was conducted on December 5th, 2011. Due to the condition of the remains, the cause of death could not be determined. Brandon Nandan's father, Suresh Nandan, and his mother, returned from Edmonton on November 29th of 2011. Suresh Nandan told police he observed damage to the walls of the basement stairwell and staircase.

He replaced the drywall and repainted the area and he replaced the carpet on the stairway. The old drywall, carpet and the banister were all taken to the Langley City dump. [ 16 ] When police investigators examined the residence, no forensic evidence was located. Police observed spots of what appeared to be blood in the garage and at various locations on and inside a pickup truck owned by Suresh Nandan. Branson Sanders' DNA was found on the front passenger side door handle. Beyond this there is no information before the court as to how or who removed Mr.

Sanders' body, or who was responsible for setting his remains on fire. [ 17 ] I wish to speak for a moment about Branson Sanders, and to his mother, Hanele Sairanen, and other family and friends of Branson Sanders who may be here today and who were present when submissions were heard on the previous day. I have read the victim impact statements which have been filed. [ 18 ] Branson Sanders was born on July 27th of 1991; he was 20 years of age when he died in the circumstances that I have described. On the last day I heard Ms.

Sairanen's victim impact statement read by her, by audio recording played in court, and a transcript was filed which I have again read. The transcript along the margins contains a series of photographs of Branson Sanders from infancy through childhood and into his young adult years. I am going to read two paragraphs from that victim impact statement prepared by Branson Sanders' mother, and they are the following, taken from page 4 of her statement: What was done to Branson shattered my world. Anger, revolt, bitterness choke me. I feel collapsed and my personal balance remains fragile.

What is my future without my son? It seems impossible to assess my pain and tell you how this drama has affected me. This is now what my daily life is like. Branson is no longer here for me to love. I will remain forever inconsolable. The weight of my tears and suffering has broken my life. The loss of my only son, my only child, Branson, is beyond words. There will be no more birthday parties, backyard barbecue gatherings, holiday celebrations or other family activities to share. The laughter, hugs, guidance, advice, sense of security and every opportunity to say "I love you" are forever gone.

Our family is forever "broken." [ 19 ] Ms. Sairanen's victim impact statement is a moving and honest statement of a mother's loss, and a remarkable eulogy to her son. It helps us to understand the enormity of the loss and the tragedy when a young life is ended, and the challenge a mother, family and friends face in dealing with that loss, addressing their grief, and then moving forward as they must do.

No sentence which I might impose today can replace that loss or fill the void left behind, nor would that be a realistic expectation in a case like this. [ 20 ] I am now going to review the objectives of sentencing which are relevant in this case. [ 21 ] Manslaughter is a form of culpable homicide. The Criminal Code provides that in the circumstances of Mr. Sanders' death as we know them, the maximum sentence is life imprisonment. The Criminal Code in these circumstances does not set a minimum sentence.

This reflects the wide range of circumstances which may amount to manslaughter, extending as has often been pointed out, from near accident to near murder. [ 22 ] In determining a fit sentence within that very broad range, a court must be guided by the purpose and principles of sentencing which are set out in s. 718 , 718.1 and 718.2 of the Criminal Code . I am going to read s. 718 of the Criminal Code because it provides the focus for sentencing hearings conducted in criminal courts in this country. It states the following: 718.

The fundamental purpose of sentencing is 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; (

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 acknowledgement of the harm done to victims and to the community. [ 23 ] The sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of these offenders. In determining a proper sentence I must take account of aggravating and mitigating factors. The sentence imposed should be similar to sentences imposed on similar offenders in similar circumstances. Our sentencing regime is not governed by an arbitrary application of a simple formula; it is a complex and nuanced balancing of the variety of objectives and principles that I have referred to in the context of

the particular circumstances of this offence and these offenders. [24] Our criminal sentencing regime is not motivated by vengeance.

It is instead directed towards what the Supreme Court ofCanada has said is "an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moralculpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender,and the normative character of the offender's conduct…" It incorporates the principle of restraint and "…the imposition of a just andappropriate punishment and nothing more." (R. v.

C.A.M., (SCC), [1996] SCJ No. 28 at para. 80) The sentence"should also communicate society's condemnation of that particular offender's conduct." The sentence represents "…a symbolic,collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrinedwithin our substantive criminal law." (R. v. C.A.M. at para. 81) [25] The circumstances of each offender are important considerations in achieving the proper balance among the various objectivesand principles that are relevant in the circumstances.

I am going to turn now to the circumstances of each of these two offenders. [26] Brandon Nandan is 21 years of age. He was 19 at the time of these events. He has no prior criminal history. During his highschool years he became involved in drug and alcohol use. He began selling marihuana for profit. His schooling suffered. Initially he didnot complete Grade 12; he has since done so while on remand and before his release on this charge. In Grade 11 he took the auto bodyand automotive collision repair program at Vancouver Community College.

He held a variety of jobs in the period leading up to thisoffence, but he was laid off in the fall of 2011 and he became focused on drug trafficking to support his own use. [27] When these charges were laid, Mr. Nandan was arrested and remained in custody from March 16th of 2012 until his release onbail on September 26th of 2012. He has complied, as far as I am aware, with his bail obligations since his release. During this period hehas obtained a Class 5 driver's licence and a forklift certificate. [28] Brandon Nandan has the strong support of family and friends.

I have read the book of letters of support which were filed on hisbehalf as Exhibit 13 in this hearing. That support will be important to Mr. Nandan in assisting his rehabilitation and reintegration intothe community following his release from custody. [29] Tab 1 of that book is a letter to the court written by Mr. Nandan. In it he asserts that he has reconnected with family in apositive and supportive way, and he seeks to learn from these tragic events. In the letter, through his plea of guilty and his statement incourt, I conclude he regrets his conduct and is remorseful.

I conclude he is gathering insight into his actions. I conclude as well that thatprocess is not yet complete. His progress toward personal deterrence therefore continues. [30] Shakib Abdiriz Shakib is 21 years of age. He was 19 at the time of this offence. He is Somalian. He was raised in Delta. Hehas a younger brother and a sister. He was raised by his mother and his stepfather. He completed Grade 12. His adult record includes aconviction for possession of a controlled substance.

The offence date predates the offence before me, although the sentence, whichincluded a probation order for one year, was imposed in February of 2012. Thereafter, he was sentenced on offences of robbery andassault which postdate this offence and appear to have been committed while he was on probation, if I am reading the record correctly. He is currently in custody. [31] It is agreed that he should be credited with 252 days' time served, to which I will add 13 days since the date of submissions, fora total of 265 days.

He has the support of family members which will be similarly important to him on his release to assist in ensuringhis continuing rehabilitation. Rehabilitation in respect of both of these offenders, based on their young ages, continues to be an importantsentencing objective. [32] Through his plea of guilty, his statement to the court set out in a letter which was filed at the hearing and read duringsubmissions, and the submissions of his counsel, I conclude that Mr. Shakib is remorseful and regrets his actions.

I conclude thegathering of insight into the full extent of his conduct is continuing but is not yet fully realized. His progress towards personaldeterrence continues. [33] I have reviewed the case authorities which have been provided by counsel. In R. v. Gillies, a decision of the British ColumbiaCourt of Appeal in 1998, a decision of the Chief Justice at that time, the following is set out in paragraphs 11 and 12: 11. Mr. Ray for the appellant argued that the effective sentence of ten years was beyond the range for these circumstances and for thisoffence.

He cited a number of cases… And a number of citations are included in the quotation, and then continuing: …and others, which establish a range for similar cases from four to six years for this offence. While the Criminal Code prescribes arange of from suspended sentence to life, four to six years has been the usual range for most manslaughter cases for as long as I canremember. 12. There are, of course, other cases where sentences of eight to ten years or more have been given. In most of those cases, however,there were other factors that made the offence much more serious.

Cases were cited where there was torture, long records of violentoffences, violence against a spouse, woman or child, and killing in the course of a robbery. [34] More recently, in R. v. Bernier, 2003 BCCA 109 , [2003] BCJ 446 (BCCA) and R. v. Henderson (2005), CCC (3d) 366(BCCA), both decisions of the Court of Appeal in this province, that court has reminded sentencing courts that although this range maybe helpful, it is the application of sentencing principles in each individual case which must guide the outcome. In Henderson atparagraph 34 the court stated the following:

Thus, the four-to-six-year range suggested in Gillies is just that; a suggestion.

The question is whether, in determining the sentenceimposed on these offenders for this offence, the trial judge considered the relevant principles of sentencing and gave appropriateemphasis to aggravating and mitigating factors, and took account of the particular circumstances of each of the accused and of theoffence. [35] Here I have taken account of the pleas of guilty by both accused before trial, their relatively young ages, their stateddetermination to learn from the events and their involvement, and to live productive lives once released.

Their pleas of guilty areacknowledgments of their responsibility and have the effect of bringing these proceedings to a conclusion more quickly than would havebeen the case had a trial taken place. I note the positive support each has, and what I conclude are good prospects for rehabilitation. [36] This, however, was a grave criminal offence that has shocked the community. A young life was lost in tragic and what musthave been most fearful circumstances. This was a senseless crime. Mr. Sanders was taken by surprise. Although he may havestruggled, he was readily disabled, bleeding and overwhelmed.

Whatever the original intention was, this encounter was engineered byMr. Nandan over the days leading up to his death, with Mr. Shakib to provide a presence in the strongly-intimidating sense of that word. It appears that Mr. Shakib then initiated the attack and he did so carrying a weapon. [37] Branson Sanders' mother, his family and the community are left without a clear understanding as to why this occurred. Thedisposal of his remains, although not specifically captured by this plea, is a sad corollary to these events endured by his family and notfully explained.

Extensive efforts were taken to remove any evidence of the crime from the home. Those efforts were initiated byBrandon Nandan just moments after the death, during which he co-opted others present who were not involved in the offence itself toparticipate in the clean-up.

In these circumstances I conclude both offenders before the court carry a high level of moralblameworthiness in respect of the death of Branson Sanders. [38] The sentence to be imposed must include, in the balance of sentencing considerations, a strong statement denouncing thisconduct, and to the greatest extent possible, contribute to deterring others from acting as these offenders have.

I conclude the jointrecommendation by these experienced and respected counsel that each be sentenced to a term of six years' imprisonment properly reflectsthat balancing of sentencing objectives and principles relevant here, and I will accept that recommendation. [39] Mr. Shakib, if you could stand, please? You will have credit for 265 days of pre-sentence custody. I impose a further sentenceof five years and 100 days imprisonment. You may be seated for a moment. [40] Mr. Nandan was in custody 196 days following his arrest and prior to release on bail on September 26th of 2012.

Section719(3) and (3.1) govern credit for pre-sentence custody. They state the following:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent incustody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each dayspent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unlessthe reason for detaining the person in custody was stated to be the record under subsection 515(9.1), or the person was detained incustody under subsection 524(4) or (8). [41] Mr. Nandan seeks enhanced credit pursuant to ss. (3.1). The statutory provisos which would exclude consideration of enhancedcredit for pre-sentence custody do not apply here. I must therefore consider whether the circumstances justify enhanced credit. Although Mr.

Nandan did not have a particular disability or illness that rendered his pre-sentence custody additionally burdensome inthat way, it is argued that he was still very young at the time, he had no prior experience with the justice system, and was suddenlyplaced in confinement with other offenders. He is of smaller stature and so it is said, arguably, he could be vulnerable in the institution.

I am told he was unable to see his family for a month, although the reason why that would be so was not explained. [42] I am told he did not apply for bail until the application which resulted in his release on September 26th of 2012. The charge atthat point was first degree murder. Everything I have heard, however, suggests to me that Mr. Nandan would have been a goodcandidate for consideration of release, and so why no application was made earlier is unstated and unclear, particularly if thecircumstances were burdensome such that enhanced credit should be considered.

It appears he was active to the extent that he finishedhis high school program while in pre-sentence custody. [43] R. v. Bradbury, 2013 BCCA 280 , [2013] BCJ 1261 (BCCA) is a decision of the Court of Appeal in this province in2013 which addresses and provides guidance on the application of s. 719(3.1). That is the subsection that addresses enhanced credit.

Atparagraph 48 of that judgment, Madam Justice Smith, to which Madam Justice Neilson concurred, stated the following: I also agree with the other appellate decisions that the exception in ss. (3.1) does not require “exceptional” circumstances and thatcircumstances that will justify enhanced credit must be personal to the individual offender.

In my opinion, however, circumstances thatwould justify enhanced credit must have a qualitative characteristic; that is, a characteristic that is individual to the offender but alsodistinct from those characteristics that are universal to, or almost universally held, by other similarly situated offenders. Examples ofcommonly held circumstances might include the lack of programs, the conditions of the remand institution, and the loss of remission orparole eligibility.

Individual qualitative circumstances might include the imposition of segregated or protective custody through no faultof the accused, the harsh effect of remand conditions because of a particular health issue by an accused, or a delay in the proceedings thatis not attributable to the accused. Stated otherwise, circumstances to justify enhanced credit must be ones that are outside of the commonexperience of most offenders in remand custody. [44] In consideration of that guidance provided by the Court of Appeal, I conclude that a basis to apply enhanced credit for pre-

sentence custody in respect of Mr. Nandan has not been demonstrated. [ 45 ] Mr. Nandan, I grant credit of 196 days of pre-sentence custody. I impose a further sentence of five years, 169 days' imprisonment. [ 46 ] There will be orders that each offender supply samples of their DNA to the National DNA Databank; this is a primary designated offence. [ 47 ] Each will be bound by a mandatory ten-year firearms prohibition order pursuant to s. 109 of the Criminal Code . [ 48 ] The surcharges are waived. (REASONS FOR SENTENCE CONCLUDED)