R. v. Clayton, 2013 NSPC 94

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Clayton, 2013 NSPC 94 Date: October 22, 2013 Docket: 2467170 2467174 2467176 2467178 2467192 Registry: Halifax Between: Her Majesty the Queen v. Kojo Clayton SENTENCING DECISION Judge: The Honourable Judge Anne S. Derrick Heard: October 18, 2013 Decision: October 22, 2013 Charges: sections 86(2); 90; 92(1); 94(1); 244.2 of the Criminal Code .

Counsel: Rick Woodburn, for the Crown Trevor McGuigan, for Kojo Clayton By the Court: Introduction [ 1 ] On March 24, 2012, Kojo Clayton chased Devon Johnson up a street in downtown Halifax, firing three shots at him from a .32 calibre revolver. A short time later, after he and Mr. Blagdon had driven away from the area, they were subject to a take-down and arrest by police who then discovered the revolver in the glove box of the car. [ 2 ] I convicted Mr.

Clayton of five (5) offences arising out of these events, the most serious offence being the intentional discharge of a firearm while being reckless as to the life or safety of another person, contrary to

section 244.2 of the Criminal Code . In addition I convicted Mr. Clayton of offences related specifically to his possession of the revolver: carrying a concealed weapon (contrary to

section 90 of the Criminal Code ); careless storage of the revolver (contrary to section 86(2) of the Criminal Code ); being an occupant of a motor vehicle in which he knew there was a revolver (contrary to section 94(1) of the Criminal Code ); and possession of a revolver knowing he had no license or registration for it (contrary to section 92(1) of the Criminal Code .) [ 3 ] I acquitted Mr. Clayton of the most serious charge against him, a charge of attempting to murder Mr. Johnson. [ 4 ] There is an extensive discussion of the evidence and my factual findings in my trial decision. (R. v. Blagdon, [2013] N.S.J.

No. 404 ) In brief, Mr. Clayton and Mr. Blagdon were out together in downtown Halifax in the early morning hours of March 24, 2012. An altercation with Devon Johnson in a bar led to Mr. Clayton chasing and shooting at him. None of the shots hit anyone and Mr. Clayton abandoned the pursuit. Mr. Clayton and Mr. Blagdon left the downtown in Mr. Blagdon’s grandmother’s car with Mr. Clayton driving. The police pulled the vehicle over and discovered the .32 calibre revolver in the glove box, just lying loose. Mr. Clayton admitted at trial that he had no firearms license or registration for the gun.

Crown and Defence Positions on Sentencing [5] The issue in this sentencing is not whether Mr. Clayton should go to prison – there is no dispute that he must – the issue is whatlength of time he should serve. The Crown submits that a global sentence of eleven (11) years is appropriately severe. Mr. McGuiganargues that Mr. Clayton’s sentence should be six (6) years. There is Crown and Defence agreement on two aspects of Mr.

Clayton’ssentence: (1) his sentences for the various offences should be served concurrently; and (2) he should be credited for the time he hasserved in pre-sentence custody since March 24, 2012 on a 1.5 to 1 basis. This calculation produces a credit of 27 months and 12 days. [6] I agree with the Crown and Defence recommendations on the issues of concurrent sentences and remand credit. R. v. T.E.H., 2011NSCA 117 , [2011] N.S.J.

No. 677 (C.A.) sets out the factors to be considered in determining whether a sentence should beconcurrent or consecutive: the time frame within which each offence occurred, the similarity of the offences, whether a new intent orimpulse initiated each of the offences, and whether the total sentence is fit and proper under the circumstances. (T.E.H., paragraph 37)Applying these factors, Mr. Clayton’s sentences should run concurrently. [7] Whatever term of imprisonment I fix for Mr. Clayton will be reduced by the remand credit, leaving a go-forward sentence to beserved.

Purpose and Principles of Sentencing [8] In sentencing Mr. Clayton I am guided by the sentencing provisions of the Criminal Code.

Section 718 of the Criminal Code setsout the objectives a sentence must achieve: denunciation, deterrence – both specific and general, separation from society wherenecessary, rehabilitation of the offender, reparations by the offender, and the promotion of a sense of responsibility in offenders, andacknowledgment of the harm done to victims and to the community. [9] Sentencing is profoundly subjective. (R. v. Ipeelee,2012 SCC 13 , [2012] S.C.J. No. 13, paragraph 39; R. v. Wust, 2000SCC 18 , [2000] S.C.J. No. 19 paragraph 21; R. v. M. (C.A.), (SCC), [1996] S.C.J. No. 28, paragraph 92; R.v.

Shropshire, (SCC), [1995] S.C.J. No. 52) In determining a fit sentence, “…the sentencing judge should take intoaccount any relevant aggravating or mitigating circumstances (s. 718.2(

a) of the Criminal Code), as well as objective and subjectivefactors related to the offender's personal circumstances.” (R. v. Pham, 2013 SCC 15 , [2013] S.C.J. No. 100, paragraph 8; R. v.Nasogaluak, 2010 SCC 6 , [2010] S.C.J.

No. 6, paragraph 44) [10] Assessing moral culpability is a fundamental aspect of determining the appropriate sentence: a sentence must be proportionate tothe gravity of the offence and the degree of responsibility of the offender. (section 718.1, Criminal Code) Proportionality is “closely tiedto the objective of denunciation”, promotes justice for victims, and seeks to ensure public confidence in the justice system. The principleof proportionality, …ensures that a sentence does not exceed what is appropriate, given the blameworthiness of the offender.

In this sense, the principleserves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction isone that reflects both perspectives on proportionality and does not elevate one at the expense of the other. ( Ipeelee, paragraph 37) Pre-sentence Report dated October 4, 2013 [11] Mr. Clayton is 24 years old. He was born and raised in Toronto, graduating from high school there in 2008. His maternalgrandmother raised him because his mother had substance abuse issues. Mr. Clayton never knew his father.

His grandmother ensured hisbasic needs were met and there was no abuse, violence, or substance abuse in the home. He remains very close to his grandmother,spending a lot of time with her prior to his arrest for these offences. His grandmother told the author of the pre-sentence report that she isshocked by Mr. Clayton’s offences, saying: “I couldn’t believe it. I really can’t say why it happened.” (pre-sentence report, page 3) [12] Mr. Clayton has been involved in a common-law relationship for approximately two and a half years. There is a child from thisrelationship and Mr.

Clayton’s partner also has an older son. She spoke in the pre-sentence report about how good Mr. Clayton is withher son, who has autism. She too is shocked by Mr. Clayton’s involvement in these offences, saying she cannot make sense of it all anddoesn’t know why it happened. She experiences Mr. Clayton as a “pretty calm, cool, collected type of person.” She went on to describehim as follows: “He’s funny and easy to be around. He stays out of people’s business.” (pre-sentence report, page 3) [13] In 2011 and 2012, Mr. Clayton was employed as a construction labourer.

The pre-sentence report indicates he was volunteering inthe community prior to his arrest but no specifics are provided. He also played basketball, having been an athlete in high school. He hasno education beyond high school but is interested in participating in a culinary arts programme. He does not have any learning disabilitiesor substance abuse issues. During his time on remand he has been going to school and church, and has attended a YMCA employmentworkshop, and completed anger and stress management programmes. [14] In the 19 months that Mr.

Clayton has been in custody, he has only incurred two behaviour reports, both in October 2012 forphysical altercations with other offenders. The Case Management Officer at the Central Nova Scotia Correctional Facility describes Mr.Clayton as “polite to staff and has been following their direction.” (pre-sentence report, page 4) Prior Criminal Record [15] Although the pre-sentence report indicates that Mr. Clayton moved to Nova Scotia in 2011 with his grandmother, he reported thathe had moved out on his own at age eighteen (18) to live independently. Mr. Clayton turned 18 in late 2006.

By May 2008 he hadstarted to get into trouble in Nova Scotia. Prior to that, in late 2005 he had been sentenced for robbery in Toronto as a youth, receiving asentence of eighteen (18) months’ probation.

[ 16 ] Mr. Clayton’s first offence as an adult was a theft under $5000 for which he received a fine of $150. The offence was committed on May 15, 2008 and Mr. Clayton was sentenced on June 26, 2008. [ 17 ] Less than a year later, on April 16, 2009, Mr. Clayton committed another minor theft and on June 1, 2011 was fined $250. This sentencing incorporated a failure to attend court charge from May 21, 2009 which was dealt with by one day in custody served by his day in court. [ 18 ] While the theft and failure to attend charges were pending, in March 2010 Mr. Clayton got into trouble again.

This led to two charges of assault, a threats charge, and a charge of mischief, presumably property damage. In March 2010, Mr. Clayton was 21. When he was sentenced on May 12, 2012, he received one day in custody served by his day in court on all four offences, concurrently. [ 19 ] There was a recognizance associated with the March 2010 charges. Mr. Clayton was still bound by its conditions when he committed the offences of March 24, 2012 that I am sentencing him for. [ 20 ] Despite his family’s positive view of him, Mr.

Clayton has had a tendency, as an adult, to get into conflict with the law, with offences in May 2008, April and May 2009, and March 2010. However, nothing in his record approaches the seriousness of the present charges. Mr. Clayton has never previously done any federal prison time. Aggravating Factors [ 21 ] The most serious offence for which I am sentencing Mr. Clayton is the

section 244.2 offence – intentional discharge of a firearm while being reckless as to the life or safety of another person. The circumstances in which the offence happened are aggravating: Mr. Clayton fetched a gun after an altercation and then pursued Mr. Johnson in a downtown area busy with cars and other people. Some of the people on the streets would have been intoxicated, making it less likely they could react quickly or appropriately to a risk. As the Crown has pointed out, although there were no people or vehicles on Carmichael Street - the scene of the shooting - when Mr.

Clayton was firing the gun, there had been just moments before and were afterwards. [ 22 ] Mr. Clayton’s recognizance with a no weapons condition is also an aggravating feature of this sentencing. A breach charge relating to the recognizance was not pursued by the Crown at trial, but the evidence of the recognizance is admissible at Mr. Clayton’s sentencing as credible and trustworthy hearsay. ( section 723 (5) , Criminal Code ) [ 23 ] On the careless storage charge arising from the discovery of the revolver in the glove box of the car Mr. Clayton was driving, it is aggravating that the gun was loaded.

Three bullets remained in the revolver’s chambers. [ 24 ] Mr. Clayton does not have an extensive criminal record but he does have a record and this is an aggravating factor. Mitigating Factors [ 25 ] Mr. Woodburn has fairly noted that although Mr. Clayton did not enter guilty pleas to the charges, it is apparent he would have done so but for the attempted murder charge. Through Mr. McGuigan, Mr. Clayton admitted at trial to having fired the revolver at Mr. Johnson: what he disputed was that when doing so he had intended to kill him. (Blagdon, paragraph 4) [ 26 ] I accept as a mitigating factor that Mr.

Clayton would have pleaded guilty had he not been facing an attempted murder charge. I also accept that he is genuinely remorseful. That was evident in his statements at the end of the sentencing hearing. The pre-sentence report notes during his interview Mr. Clayton accepted responsibility, stating: “It wasn’t the right thing to do, but I wasn’t thinking at the time.” [ 27 ] I will say this about Mr. Clayton’s comment to the author of the pre-sentence report: he was thinking at the time he fired off three shots from the revolver at Mr. Johnson. His actions were deliberate and calculated even though Mr.

Clayton was obviously not thinking about the risks to other people in the vicinity. Victim Impact Statement [ 28 ] Devon Johnson, the man Mr. Clayton chased and shot at, did not cooperate with the police investigation and did not appear as a witness at the trial. Therefore it is not surprising there is no victim impact statement. Mr. Clayton’s Moral Culpability [ 29 ] It will be apparent from my trial decision and what I have said in these reasons so far that Mr. Clayton has a high degree of moral culpability for his actions on March 24, 2012. After the altercation with Mr.

Johnson at the bar, he chose to get the revolver, concealed it, and then pursued Mr. Johnson. I found the evidence established that Mr. Clayton was aiming at Mr. Johnson. He had the gun “raised and pointed” at him. (Blagdon, paragraph 49) As I indicated in my decision, Mr. Clayton was engaged in “highly dangerous, aggressively anti-social behaviour, chasing Johnson and taking shots at him as he ran away.” (Blagdon, paragraph 52) Emphasizing Denunciation and Deterrence [ 30 ] The emphasis in sentencing Mr. Clayton has to be on denunciation and deterrence. The statutory sentencing range in March 2012 for a

section 244.2 offence was from the mandatory minimum of four (4) years to a statutory maximum of fourteen (14) years. Mr. Clayton is not suggesting that he should be sentenced according to the mandatory minimum. [ 31 ] Gun violence is of grave concern to the courts and the citizenry. It is a deadly form of violence that has spilled into the streets. It is indiscriminate, mindless violence; bullets wound or kill whomever they hit. (R. v. Brown, [2007] O.J.

No. 5659 (S.C.J.) , paragraph 20 ) Handguns are a clear and present danger in our communities and, in sentencing for offences in relation to them, denunciation operates as a powerful expression of a "symbolic, collective statement" rejecting an offender's conduct. ( M. (C.A.) , paragraph 81 )

[32] Mr. Clayton’s wildly reckless decision to shoot at Mr. Johnson could have had deadly consequences. Those consequences couldhave been some young person out for a night on the town permanently disabled or killed if one of those three fired bullets had torn into askull or vital organ. Even a ricochet could have been lethal. The public has to be protected from people who reach for a gun to settlescores. (R. v. Johnson, [2009] N.S.J. No. 349 (S.C.), paragraph 49) Mr. Clayton could have, should have, walked away – walked awayand gone home. Instead he walked away and got a gun.

He apparently thought only about teaching Mr. Johnson some kind of lesson, andnot that firing a gun in the midst of the busy downtown Halifax bar district is off the scale when it comes to irresponsible, dangerousbehaviour. [33] As for the other offences for which Mr. Clayton is being sentenced, I will repeat what I will be saying in Mr. Blagdon’ssentencing: driving in the heart of a city with a loaded, fully functioning handgun loose in a glove box is also dangerous and highlyirresponsible. Offences involving loaded, illegal handguns will attract stern condemnation by the courts.

Other Sentencing Principles [34] However, it is not only denunciation and deterrence that judges must address in sentencing for firearms-related offences, evenwhere violence is involved. The principles of restraint and rehabilitation must also be considered, even if the emphasis to be placed onthem is secondary. In Mr. Clayton’s case I must take into account his relative youthfulness - he was 23 when these offences werecommitted - his record for offences that are not comparably serious, and the fact that he has never served a significant custodial sentencelet alone a sentence in a federal penitentiary.

I am mindful that a sentence must not crush the rehabilitation prospects and the ability of anoffender to successfully reintegrate into society. [35] I also must respect the parity principle: a sentence should also be "similar to sentences imposed on similar offenders for similaroffences committed in similar circumstances." (section 718.2(b), Criminal Code) Relevant Sentencing Case Law [36] In his written submissions, Mr. Woodburn referred me to several attempted murder cases – R. v. Leblanc, 2011 NSSC 412, [2011] N.S.J. No. 600 (S.C.) R. v. Marriott, [2011] N.S.J. No. 602 (S.C.), and R. v. Beals, [2011] N.S.J.

No. 657 (P.C.) I do notfind these to be relevant to this sentencing. These cases do vividly illustrate the mindless handgun violence that puts not only the targetsbut also the public at risk: outside a daycare (LeBlanc), in front of a children’s hospital (Marriott), and at a barbershop (Beals). Butcommon sense is as informative on this point. [37] Mr. Woodburn provided me with summaries of two

section 244.2 cases: R. v. Shea Alexander Durnford, and R. v. Patrick Bevin,both from the Provincial Court. [38] Mr. Durnford pleaded guilty to a

section 244.2 offence that occurred in circumstances where he shot at a passenger in a cab, havingpursued them. On November 3, 2012, Mr. Durnford had been summoned by several confederates to the Halifax Casino. Upon arriving,he got into the front passenger seat permitting someone else to drive. They followed the victim who had left in a cab. There hadapparently been some prior animosity. Once alongside the cab, Mr. Durnford opened fire. No one was injured although the cab was hit.There was a joint recommendation for ten (10) years less Mr. Durnford’s remand time. [39] At the time of the shooting incident, Mr.

Durnford was 24 and a half years old. He was on a weapons prohibition order andreceived a two year concurrent sentence for that offence. He had a record for twenty-three (23) prior offences as an adult. His prioroffences included break and enters and assaults. In August 2007, Mr. Durnford had received a federal penitentiary term for offences thatincluded break and enter and theft over $5000. [40] Patrick Bevin committed his

section 244.2 offence on April 14, 2011. He shot up a house in Fall River believing it to be the homeof someone he felt animus toward. No one was injured. It turned out to have been the wrong house. Mr. Bevin received a ten (10) yearsentence for the

section 244.2 offence with a one year consecutive sentence as he had been subject to a weapons prohibition order at thetime. His sentences were on top of the time he had spent in remand. [41] Mr. Bevin was quite a bit older than either Mr. Durnford or Mr. Clayton. In April 2011, Mr. Bevin was 36 years old. He had forty(40) prior convictions as an adult, including for weapons offences, drug offences, and violence. He had been sentenced to federalpenitentiary time on more than one occasion. [42] I will now review certain of the

section 244.2 sentencing cases provided to me by Mr. McGuigan: • R. v. MacKenzie, [2006] N.B. J. No. 88 (Q.B.) – MacKenzie was in a car that was being followed by LeBlanc when the MacKenzievehicle made a sudden turning manoeuvre so that it was roughly positioned to face the LeBlanc vehicle. At this same time, MacKenziepulled out a pistol, stuck it out of the passenger side front window and began to shoot at LeBlanc and his passenger. There was a pursuitand more shooting by MacKenzie in a parking lot of an apartment building. LeBlanc suffered a superficial head injury as a result of beingshot.

MacKenzie had a “very extensive” criminal record with approximately forty (40) convictions. He had very recently been serving time.(MacKenzie, paragraph 24) The Crown sought an eight (8) to ten (10) year sentence and the Defence recommended a sentence in therange of four (4) to five (5) years. (MacKenzie, paragraphs 10 and 11) A nine (9) year sentence was imposed, denunciation being theCourt’s primary emphasis. • R. v. Nguyen, 2009 ABCA 317 , [2009] A.J.

No. 1009 (C.A.) – Nguyen, aged 23, fired five shots from a .45 calibre pistolinto a stationary Honda and then fired other shots at one of the Honda passengers who was fleeing on foot. Numerous innocentbystanders were present. Nguyen had no adult record. The Alberta Court of Appeal upheld the sentence of five (5) years, at the time, oneyear above the mandatory minimum for the offence.

The factors that were emphasized were Nguyen’s youth and prospects forrehabilitation, the fact that he brought a loaded firearm to a busy shopping area during business hours, and that he acted in total disregardof the danger he created for the occupants of the Honda and the innocent bystanders. (Nguyen, paragraphs 4 and 11)

• R. v. Stevens, [2010] N.S.J. No. 196 (S.C.) – In early January 2009, after an argument in a bar, Stevens fired shots at two men whohad come to speak to him in the parking lot where he was seated in his car. The men had not been involved in the earlier argument.Stevens shot one of the men in the neck. The other one managed to run away as did other people who had been in the parking lot at thetime. The injured man needed intensive care in hospital and suffered a paralyzed vocal chord.

Stevens was 23 and on probation at the time of the shooting but had a minimal prior record of one common assault conviction in 2007.He had a four year old son and was employed. Crown and Defence jointly recommended a six (6) year sentence which the Courtaccepted as falling within the range for

section 244.2 offences. • R. v. Hassan, [2012] B.C.J. No. 1049 (C.A.) – In February 2011, Hassan, having been denied entry to a night club, returned with ahand gun and shot the bouncer he had argued with, in the leg. Pursued by two witnesses, Hassan turned and tried to shoot at them but onboth occasions, the gun would not fire. The sentencing judge found that Hassan had fired seven rounds toward the club. (Hassan,paragraph 11) At the time, Hassan was on bail from Alberta and under a condition to remain in that province and not possess a weapon. He was 33years old and had no criminal record.

The British Columbia Court of Appeal distinguished certain cases, including Stevens, on the basisof the offender’s age or because of there being no serious injury to another person. (Hassan, paragraph 10) The Court of Appeal heldthat Hassan’s conduct fell “at the upper end of gravity or seriousness as compared with other cases of discharging a firearm recklessly…Mr. Hassan was lucky he did not kill someone…” (Hassan, paragraph 20) The Crown sought a sentence between eight (8) and nine (9)years; the Defence a sentence between five (5) and six (6) years. The Court upheld a sentence of seven (7) years. • R. v.

Alexander, [2013] O.J. No. 1613 (S.C.J.) – After stealing a bottle of cologne on September 13, 2010, Alexander wasapproached by two loss prevention officers. He fled and was pursued through the lower level of the mall. As he approached the foodcourt, Alexander fired a shot from a Glock 9 mm pistol. He didn’t hit anyone and dropped the gun. Alexander was approximately 27 at the time of the offence; 29 at sentencing a little over two years later. He had nineteen (19) priorconvictions including three robbery convictions, four convictions for assault causing bodily harm, and one conviction for assault.

At thetime of the shooting, Alexander was subject to two recognizance orders which he breached by being at the mall and carrying a loadedhandgun. (Alexander, paragraph 18) He had never previously served a federal penitentiary term. The Court, emphasizing denunciation and deterrence, imposed a seven (7) year sentence for the

section 244.2 charge taking into accountthe aggravating factors – a loaded handgun in a public place and a shot fired in an attempt to evade arrest – and Alexander’s “lengthycriminal record” but also his “fair chance at rehabilitation.” (Alexander, paragraph 37) • R. v. Chan, 2011 NSSC 471 , [2011] N.S.J. No. 711 (S.C.) – In April 2010, Chan went to a barber shop to get a haircut butinstead got into an altercation with another patron. The incident escalated and Chan fired three rounds from a Glock 9 mm handgun atthe other man, two of which pierced the wall of an adjacent clothing store. No one was injured.

Chan had a record of at least 27 offences, including offences committed when he was a youth. He had been sentenced to forty (40)months in a federal penitentiary for a robbery and had firearms and drug convictions as well. In addition to his prior record, the Courtviewed as aggravating the circumstances of the shooting, the “brazen and reckless behaviour” of Chan and his disregard for the life andsafety of innocent bystanders. (Chan, paragraph 31) Emphasizing denunciation and deterrence, the Court imposed a sentence of seven(7) years for the

section 244.2 offence. In the judge’s view, there was a “complete absence of mitigating factors” and that “All thingsconsidered…something more than the minimum term of imprisonment is called for with respect to the s. 244 offence.” (Chan,paragraphs 34 and 35) As in Mr. Clayton’s case, the mandatory minimum was four (4) years on the

section 244 charge. The Fit and Proper Sentence for Kojo Clayton [43] The sentence for Mr. Clayton must emphasize denunciation and deterrence, principles that include a retributive aspect. Retributionis constrained by proportionality. It …represents 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.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint;retribution requires the imposition of a just and appropriate punishment, and nothing more. (C.(M.A.), (SCC), [1996]S.C.J. No. 28, paragraph 81) [44] This will be Mr. Clayton’s first federal penitentiary sentence. It will be his first custodial sentence of any duration: any significanttime he has previously spent in custody has been on remand. This is a relevant consideration in determining how long a prison sentence itshould be. As the Nova Scotia Court of Appeal noted in R. v. Colley, (NS CA), [1991] N.S.J.

No. 62: "If the need toprotect society can be well served by a shorter sentence as by a longer one, the shorter is to be preferred." The Ontario Court of Appealhas expressed a similar view: "... a first sentence of imprisonment should be as short as possible and tailored to the individualcircumstances of the accused [rather] than solely for the purpose of general deterrence."(R. v. Priest, (ON CA),[1996] O.J.

No. 3369) This consideration is related to the principle of restraint in sentencing: that the court should impose “the leastquantum that will achieve the overall purpose of being appropriate and just.” (R. v. Best, [2005] N.S.J. No. 347 (S.C.), paragraph 25) [45] Generally, the sentencing of even serious, violent offences should be governed by this principle. I note that the Colley caseinvolved an aggravated assault committed to facilitate a robbery attempt. As Rosenberg, J. has indicated in R. v. Borde, (ON CA), [2003] O.J.

No. 354 (C.A.), at paragraph 36: …The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciationand deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought toproceed on the basis that the shortest possible sentence will achieve the relevant objectives…

[ 46 ] Mr. Clayton has a high degree of moral culpability for his actions on March 24, 2012. However I do not find I am persuaded by the Crown’s submission that he should receive an eleven (11) year sentence. An eleven year sentence would be a crushing sentence for Mr. Clayton, one that in all probability would extinguish the potential for his rehabilitation. The circumstances of Mr. Durnford and Mr. Bevin are distinguishable: similar offences yes, but very dissimilar offenders as will have been obvious from my discussion of their criminal records and prior custodial sentences. Mr.

Chan is also a dissimilar offender on the basis of his record and the sentences he previously received which obviously had not rehabilitated him. [ 47 ] My decision in this case must not only emphasize denunciation and deterrence, it must also factor in Mr. Clayton’s prospects for rehabilitation which are hopeful: he has a supportive family, a high school education, and a career plan. Unlike Mr. Chan it has not been shown that he lives a criminal lifestyle. ( Chan , paragraph 33 ) He has taken advantage of opportunities on remand to better himself. He is remorseful.

These mitigating factors have to mean something: they have to contribute to a sentence that achieves all of the objectives reflected in

section 718 of the Criminal Code . [ 48 ] I find that an emphasis on denunciation and deterrence and consideration of rehabilitation, parity, and restraint produces a different result than that reached in the Hassan , Alexander , and Chan cases where sentences of seven (7) years were imposed. Hassan was on bail, shot his victim in the leg, and then tried to shoot his pursuers, not once but twice. Alexander had a much longer and more serious criminal record, and fired in an attempt to evade arrest. Chan had a much longer and more serious record and had previously served a federal penitentiary sentence.

There was a “complete absence of mitigating factors” in his case. [ 49 ] Taking everything I have been discussing into account, I find that the appropriate sentence for Mr. Clayton on the

section 244.2 charge (Count 16) is six (6) years less the remand credit of 27 months and 12 days. On the remaining charges I am sentencing him as follows: Careless storage of a .32 calibre revolver ( section 86(2) – Count 1) – eighteen months concurrent Carrying a concealed weapon, a .32 calibre revolver (

section 90 – Count 3) – two years concurrent Possessing a .32 calibre revolver knowing he had no license or registration certificate (section 92(1) – Count 4) – six months concurrent Being the occupant of a motor vehicle in which he knew there was a .32 calibre revolver ( section 94(1) – Count 5) – two years concurrent [ 50 ] A six year penitentiary sentence is a substantial sentence, particularly where Mr. Clayton has never served a federal prison term. The events of March 24, 2012 merit a significant, denunciatory sentence. That is what a six year sentence represents in Mr. Clayton’s case.

Even with the application of his remand credit of 27 months and 12 days, Mr. Clayton’s “go-forward” sentence will be close to four years - about three years and nine months. When he reaches warrant expiry, Mr. Clayton will have spent a long time behind bars for these offences. [ 51 ] I am also granting the ancillary orders sought by the Crown: a mandatory weapons prohibition for ten (10) years pursuant to section 109(2) of the Criminal Code and a DNA order for primary designated offences pursuant to

section 487.051 of the Code . I waive the Victim Surcharge as it would be an undue hardship to impose it as Mr. Clayton is being incarcerated. [ 52 ] As Mr. Clayton will be serving a penitentiary sentence, I believe it is important that the federal prison authorities ensure he has access while in prison to opportunities for improving his employment prospects on release. Additional education and/or training relevant to Mr. Clayton’s skills and abilities should be made a priority in the administration of his sentence.

In addition, his family and community relationships should be encouraged and supported, with particular attention given to maintaining his relationships with his children and their mother. [ 53 ] With these serious offences on your record, Mr. Clayton, you are at a cross-roads now. You can turn away from whatever brought you to this point and resolutely commit yourself to a future as a productive, pro-social member of the community, or you can disappoint everyone who is counting on you to do well, and emerge from prison with the wrong set of values and attitudes.

I am hopeful you will dedicate yourself to making the right choices for yourself and your family, as you serve this sentence and once you return to the community.