R. v. Cogo Date:, 2015 BCPC 453

Citation: R. v. Cogo Date: 20150728 2015 BCPC 0453 File No: 58259-2-C Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ABDULLAH MOHAMMED COGO RULING ON APPLICATION OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: R. Fahrni and L. Ruzicka Counsel for the Defendant: D. Fai Place of Hearing: Richmond , B.C. Date of Hearing: July 21, 2015 Date of Judgment: July 28, 2015

[1] On December 14, 2014 I found Mr. Cogo and his co-Accused Mr. Halane guilty of the following offences: Count 1: Robbery of Zi Li Chen of a cellular phone and personal effects, contrary to Section 344(1)(

b) of the Criminal Code. Count 2: Use of an imitation firearm while committing the robbery, contrary to Section 85(2) of the Criminal Code. Count 3: Have in their possession an imitation firearm, for a purpose dangerous to the public peace or for the purpose of committing anoffence, contrary to Section 88(1) of the Criminal Code. Count 4: Carry or have in their possession a weapon, a baton, for a purpose dangerous to the public peace or for the purpose ofcommitting an offence, contrary to Section 88(1) of the Criminal Code. [2] The Crown seeks a sentence of 18 to 24 months for Count 1, the robbery of Mr.

Chen’s cell phone, a mandatory 12 monthsconsecutive sentence for Count 2, the use of the imitation firearm in the robbery, and 3 months for Count 4, possession of a baton for adangerous purpose, concurrent with the sentence for Count 1. Crown has conceded that Count 3 is caught by the principles of R. v.Kieneapple, against multiple convictions. [3] Mr. Cogo seeks suspended sentences on each count, with probation orders totalling 18 months in duration. [4] With respect to Count 2, Section 85(3)(

a) states that where an accused person has been convicted of an offence under Section85(2) he or she is liable, in the case of a first offence, to imprisonment for a term not exceeding 14 years and to a minimum punishmentof imprisonment for a term of one year. Pursuant to Section 85(4), such a sentence is to be served consecutive to any other punishmentimposed on the other counts arising out of the same event. [5] On January 20, 2015, Mr. Cogo filed a Constitutional Question Act Notice in which he asserted that the one year mandatoryminimum sentence in Section 85(3)(

a) violates Sections 7, 9 and 12 of the Charter of Rights and Freedoms. The matter was adjourned to July 21st for submissions on Mr. Cogo’s application and then adjourned again to today for a ruling on his application. Mr. Cogo hasmade no submissions with respect to

Section 9 and has abandoned that challenge. A ruling is only required with respect to the challengesunder Sections 7 and 12. [6]

Section 12 of the Charter states: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment” [7] In R. v. Nur, 2015 SCC 15, McLachlin, C.J. described the test to be applied to a challenge under

Section 12 at paragraph 39, asfollows: “This Court has set a high bar for what constitutes “cruel and unusual…punishment” under s.12 of the Charter. A sentence attacked onthis ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and thecircumstances of the offender: R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1073. Lamer, J. (as he then was)explained at p. 1072 that the test of gross disproportionality “is aimed at punishments that are more than merely excessive”.

He added,“[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation” (EmphasisAdded) [8] In the case of R. v. R.K., (ON CA), [2005] O.J. No. 2434, Doherty J.A. cited with approval the approach toSection 12 challenges described by Rosenberg, J.A. in paragraph 16 of R. v. MacDonald (1998), (ON CA), 127C.C.C. (3d) 57 (Ont.

C.A.): “The sentencing provision will be found to infringe s. 12 if it would provide for and would actually impose a sentence that is so excessiveor grossly disproportionate as to outrage decency in the particular circumstances of the offender. When the particular facts of the casedo not result in gross disproportionality, the court moves to the second stage and it must consider whether the impugned provision wouldimpose a grossly disproportionate punishment in reasonable hypothetical circumstances. If so, the

section will be found to violate s. 12. Finally, if the court is persuaded that there is a violation of s. 12, it must consider whether the provision can be saved as a reasonablelimit under s. 1 of the Charter”. [9] The applicant, in light of the many cases where the constitutionality of Section 85(3)(

a) and 85(4) has been upheld, is relyingonly on the first aspect of the

Section 12 analysis, i.e. that the one year minimum mandatory sentence is grossly disproportionate for Mr.Cogo, given his individual circumstances. Accordingly no submissions were made concerning the second aspect, i.e. whether themandatory minimum one year sentence would be grossly disproportionate in “reasonable hypothetical circumstances”, and I need notaddress this aspect of the analysis. If I were to find a breach of

Section 12, more submissions will be heard with respect to

Section 1. [10] In my view the Court must first consider what an appropriate and fit sentence would be for Mr. Cogo, before addressing theissue of whether a minimum sentence of imprisonment of one year would be grossly disproportionate for him. It is necessary at thisstage to consider both the circumstances of the offences and the circumstances of Mr. Cogo, and balance those that are aggravating withthose that are mitigating. [11] I have described the facts found at trial in detail in my reasons for judgment convicting Mr. Halane and Mr. Cogo.

However abrief review of those facts that I find to be relevant to sentencing is appropriate at this point. [12] On a dark and rainy night in December 2013, the complainant had taken the last Skytrain to Richmond, exited at Brighouse

Station and was walking the short distance from the station to his apartment on Buswell Street, carrying his umbrella. As he wascrossing Buswell Street, he was set upon by Mr. Halane brandishing a metal rod, and by Mr. Cogo who pointed, what the complainantthought was a real handgun, at his head from 20 to 25 centimetres away. Both Mr. Halane and Mr. Cogo were shouting at thecomplainant, demanding his belongings. Mr. Halane began striking the complainant about the head with either his fists or the metal rod.

The complainant placed his arms around his head to protect himself and ended up having injuries to his hands and swelling to the back ofhis head. The assailants became impatient and reached into the complainant’s pockets, taking his cell phone, bus pass, driver’s licenceand his brown vest before running away. [13] Within 10 minutes the complainant’s cell phone was “pinged” to a location a couple of blocks away, where police convergedand arrested both Mr. Halane and Mr. Cogo. Mr. Cogo was found slumped down in the front passenger seat of a car pretending to beasleep.

He was found in possession of the complainant’s brown vest and bus pass. Under the seat where Mr. Cogo was sitting was theframe of a broken down “Airsoft” BB pistol. The slide for the pistol was inside Mr. Cogo’s jacket pocket. There is no evidence that theslide was attached to the pistol during the robbery. I find that the BB pistol was not operational at the time of the offences. [14] After being taken to the police detachment after his arrest, Mr. Cogo gave a lengthy statement in which he basically confessedhis

part in the robbery. Constable Crawford, the interviewing officer, described him as cordial, respectful and cooperative. Mr. Cogoexpressed remorse for his actions to probation officer Kiran Chatha, the author of his pre-sentence report. He has also expressed hisremorse today in his address to the Court. [15] Mr. Cogo has spent a total of 7 days in pre-sentence custody.

For the past 19 months, he has complied with all of his bailconditions including a house arrest condition, requiring him to be inside of his residence, save and except for medical emergencies,travelling between his home and court, attending appointments with his bail supervisor or otherwise with the prior written permission ofhis bail supervisor. [16] Mr. Cogo was 21 years old at the time of these offences and is now 22. He has no prior criminal history or history of police involvement. He is the 2nd of 3 children of parents who immigrated to Canada 25 years ago from the former Yugoslavia and areBosnian Muslims.

Mr. Cogo was born in Canada and has completed high school. He continues to live with his parents and siblings. [17] The pre-sentence report describes Mr. Cogo as immature, naïve and easily influenced by peers. At page 4 of the pre-sentencereport, under the heading “Summary and Proposed Interventions”, probation officer Kiran Chatha wrote: “His immaturity and choice ofpeers have been identified as the contributing factors in Abdullah’s criminal behaviour.” [18] At the end of the

section under the heading “Clinical Impressions/Mental Status” in the psychological report, Dr. Brown wrote: “His symptom pattern was fairly unusual, which could either be due to exaggeration or possibly a rare condition (such as a seizuredisorder). My primary concern is that he would be easily influenced by others due to his vulnerability and loneliness.” [19] The psychological report concludes, under the heading “Summary and Recommendations” as follows: “Based on his testing and his school performance, he likely has limited cognitive capabilities.

He admitted he is lonely and feelsmistreated and rejected by others. My primary concern based on the current information is that Mr. Cogo will be vulnerable to negativeinfluences in an attempt to form friendships or gain status. I would recommend that he be referred back to Forensic Psychiatric Services Commission to determine whether a psychiatric assessmentor ongoing treatment would be of benefit. I would suggest that monitoring of his associates would be the best way to ensure that he doesnot commit further offences.” [20] Crown has conceded that Mr.

Cogo may have, in the commission of these offences, been an immature dupe in co-accusedHalane’s violent schemes. Crown agreed that Mr. Halane, though only a few years older than Mr. Cogo, was an opportunistic andmanipulative criminal who had been successful in enlisting other young males with no prior criminal history, to join with him incommitting robberies, including one robbery while on bail for these offences. Mr. Halane clearly had a propensity for violence. Besideshis assault on Mr. Chen, Mr. Halane was threatening Mr.

Cogo with violence shortly before police arrived to arrest them. [21] Despite the large number of mitigating factors it is not easy to ascertain the quality of Mr. Cogo’s candidacy for rehabilitation. He remains dependent on his parents with little apparent motivation to either find employment or attend school or vocational training. There is little evidence of Mr. Cogo taking advantage of what support he has in the community to better himself or to take any initiativetowards his own rehabilitation. [22] There are also a number of aggravating factors.

The fact that the robbery was perpetrated with violence is, in and of itself, anaggravating circumstance. Sentences for robbery with violence typically range between 2 and 9 years. The fact that an imitation firearmwas used in the offence is also aggravating. There are few situations more terrifying than having a firearm pointed at you from closerange by a robber shouting demands for your possessions and threatening you. [23] The robbery was pre-meditated in that both Mr. Halane and Mr. Cogo brought weapons with them. Mr.

Cogo’s onlyexplanation for his involvement was that he felt it was the only way he would be paid for a debt Mr. Halane owed him. Once therobbery started, Mr. Cogo participated fully, pointing his imitation firearm at Mr. Chen’s head from 20 to 25 centimetres away, shoutingat him and demanding his possessions. [24] In R. v. Smith, (SCC), [1987] 1 S.C.R. 1045 (S.C.C.) the court identified 4 factors to be considered in ananalysis of a

Section 12 challenge: • the gravity of the offence; • the personal circumstances of the offender;

• the particular circumstances of the case; and • the actual effect of the punishment on the offender. [25] In R. v. Goltz, (SCC), [1991] 3 S.C.R. 485 (S.C.C.) the following factors were also considered as relevant: • whether the punishment is necessary to achieve a valid penal purpose; • whether it is founded on recognized sentencing principles; • whether valid alternatives to the punishment exist; and • whether comparison with punishments imposed for other crimes in the same jurisdiction reveals great disproportion. [26] Again, Mr.

Cogo is not advancing the argument that the mandatory minimum consecutive one year sentence for Count 2 isdisproportionate with respect to reasonable hypothetical circumstances. The focus of Mr. Cogo’s submissions is on how the punishmentrequired by Sections 85(3)(

a) and 85(4) would affect him personally. [27] In light of the aggravating and the mitigating factors in regard to the circumstances of Mr. Cogo and the circumstances of theseoffences, and balancing those, I might have considered a conditional sentence order with a long period of probation to follow. However,a conditional sentence is not available pursuant to

Section 742.1(e). [28] The circumstances of the robbery with the use of a firearm, in the circumstances of this case, are very serious. It was clear thatthis was a terrifying ordeal for Mr. Chen, who believed that the gun was real, or that it very well could be real. I agree with thoseauthorities that have found, in circumstances similar to those in the case at bar, the fact a gun was not real, to not be a mitigatingcircumstance. [29] Mr. Cogo made his own decision to participate in the robbery and to use the imitation firearm.

Notwithstanding the concern ofthe probation officer and the psychologist in their reports prepared for the court, that Mr. Cogo is a vulnerable and immature individualeasily influenced by others, the fact is that Mr. Cogo stated his own motivation for participating in the robbery - so that he could berepaid the money Mr. Halane owed him. While I accept that there was some degree of manipulation by Mr. Halane, in my view, Mr.Cogo must take responsibility for the decision he made to participate in the robbery. Accordingly, Mr.

Cogo must be considered to havea significant level of culpability for his actions in committing these offences. [30] I acknowledge, given the opinions provided in both the pre-sentence report and the psychological report as to Mr. Cogo’svulnerability, that a sentence of incarceration would be harsh, perhaps even excessive, for Mr. Cogo. I acknowledge that it may beharsher for him than for many other young, first-time offenders. However, after considering all of the aggravating and mitigating factorsand the circumstances of the offences and of Mr.

Cogo, I am unable to find that suspending sentence, or imposing a non-custodialsentence, with respect to these offences would be a fit sentence. [31] After considering all of the factors to be considered in a

Section 12 challenge, I am also unable to find that a one yearmandatory sentence on Count 2, consecutive to other sentences that I would impose on the other counts, would be so excessive or grosslydisproportionate as to outrage decency in the particular circumstances of Mr. Cogo and in the particular circumstances of these offences. [32] The Applicant further submits that by placing both real firearms and imitation firearms in the factors justifying a minimummandatory sentence, Sections 85(3)(

a) and 85(4) are overbroad. The Applicant submits that while imitation firearms may be capable ofcausing fear, they are not capable of inflicting grievous bodily harm and that therefore, Section 85(3)(

a) casts too wide a net. [33] In my view, the authorities do not support the proposition being advanced by the Applicant. In R. v. Charles, 2013 ONCA 681, [2013] O.J. No. 5115, Cronk, J.A. delivered the unanimous judgment of the Court and stated the following at paragraphs 97and 98: “On these admitted facts, there can be no doubt that Charles’ conduct was very serious. He engaged in a robbery in a public place,during business hours, when innocent people were in attendance.

Although none of the agency employees was injured, they did not knowthat Charles’ weapon was an imitation firearm that could not be used to shoot them. They were understandably frightened. Indeed, oneof the employees collapsed on the floor in fear when the guns were pointed at the agency manager. As the Attorney General of Canadasubmits “a robbery with an imitation firearm may be just as terrifying [as a robbery involving real firearms] for its victims who may nothave the ability, while being held at gunpoint, to appreciate that the firearm being used is not real.

This in fact is what occurred in the robbery in which Charles was involved. Insofar as the victims of the crime knew, they were beingrobbed at gunpoint with the threat of imminent violence. The fact that Charles’ gun was an imitation rather than a real gun in no waydiminishes the gravity of his conduct or its devastating effect on his victims.” [34] This view is also found in the case of R. v.

Stewart, [2010] BCCA 153, where Frankel, J.A. stated at paragraphs 26 and 27 asfollows: “The offence of using a firearm (or an imitation firearm) while committing an indictable offence is also a serious one, punishable by amaximum of 14 years’ imprisonment. It is clear from R. v. Steele, 2007 SCC 36, [2007] 3 S.C.R. 3, that using a firearm to intimidateconstitutes “use”. In that case, Mr. Justice Fish stated: 23… The use of a firearm in the commission of a crime exacerbates its terrorizing effects, whether the firearm is real or a mereimitation. Indeed, they share that very purpose.

This view of the effects caused by firearms is also reflected in R. v. Felawka, (SCC), [1993] 4 S.C.R. 199 wherein Mr.

Justice Cory said (at 211) that “[n]o matter what the intention may be of the person carrying the gun, the firearm itself presents theultimate threat of death to those in its presence”. The “use” of a firearm in the commission of an offence can lead to serious, albeit unintended, consequences. For example, even thoughthe offender may not have initially intended to “pull the trigger”, he or she may do so in the heat of the moment.

Of equal concern isthat the person confronted may, because of the presence of the firearm, react more strongly than he or she otherwise would have,resulting in someone being injured or even killed. Clearly, this criminal prohibition is meant to protect all of us from serious harm.” [35] In light of the authorities and my view of the facts of this case, I do not find that Sections 85(3)(

a) and 85(4) are overbroad. [36] I find that the minimum mandatory sentence contained in Section 85(3)(

a) and the requirement that it be served consecutively inSection 85(4) to not constitute cruel and unusual punishment and not to be in breach of the Applicant’s rights under

Section 12. [37]

Section 7 of the Charter states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice.” [38] The Applicant submits that the mandatory minimum sentence required by Section 85(3)(

a) breaches his rights under

Section 7of the Charter by removing the Court’s discretion to give paramountcy to the principle of rehabilitation and, that the removal of thisdiscretion results in a deprivation of liberty not in accordance with the principles of fundamental justice. [39] The Applicant also submits that Sections 85(3)(

a) and 85(4) of the Code create a sentencing regime that requires the Court totreat each offender the same and is therefore arbitrary and not in accordance with the principles of fundamental justice. [40] These submissions would appear to be directed to the constitutionality of mandatory minimum sentences generally. [41] While a mandatory minimum sentence certainly does restrict the discretion a court has when imposing sentence, I can find noauthority for the proposition that by doing so, Parliament has offended the principle of fundamental justice.

Indeed, numerousauthorities have confirmed the right of Parliament to legislate minimum mandatory sentences. Many of them have dealt specifically withthe constitutionality of Section 85(3)(

a) and Section 85(4), for example; R. v. Krug, (SCC), [1985] 2 S.C.R. 255, R. v.Wheatle, [1993] O.J. No. 2747 (Ont. C.A.), R. v. Brown, [1994] 3. S.C.R. 749, R. v. R.K., (ON CA), [2005] O.J.No. 2434 (Ont. C.A.), R. v. Stewart (supra) and R. v. Meszaros, 2013 ONCA 682 , [2013] O.J. No. 5113. [42] I disagree with the submission that a mandatory minimum sentence completely removes the discretion of a court to impose asentence giving paramountcy to the principle of rehabilitation. There have been cases where accused persons have been rehabilitatedwhile incarcerated.

Indeed, there have been cases where incarceration was consistent with, and even necessary to, rehabilitation. Thereare sometimes situations where an accused person has been unable, left to their own resources, to extricate themselves from anenvironment detrimental to rehabilitation and supportive of criminality. [43] I also disagree that Sections 85(3)(

a) and 85(4) create a sentencing regime that requires the Court to treat each offender the sameand is therefore arbitrary. In my view, the Court still has the ability, where Section 85(2) is combined with the predicate offence ofrobbery, to draft a sentence that can take into consideration the differences in circumstances of both the offender and the offences, aswell as address principles of rehabilitation as well as denunciation and deterrence. [44] I find this leg of the Applicant’s submissions to be, in fact, a more broadly framed argument that involves the same principles tobe considered in the application under

Section 12. I find Sections 85(3)(

a) and 85(4) not to be in breach of the principle of fundamentaljustice, not arbitrary, and not to be in breach of the Applicant’s rights under

Section 7. [45] In my view, a fit sentence for these offences must address the principles of specific and general deterrence and denunciation. This was a very serious offence - robbery with violence and at gunpoint. On the other hand, it is also my view that the principle ofrehabilitation must also be addressed. The Accused is still a young man - 21 at the time of the offences, and now 22. He also appears tobe immature for his age. He has a supportive family. His mother and usually his siblings and friends have been in court each day of thishearing.

He has no prior criminal history or history of involvement with police. He has been cooperative with police and basicallyconfessed his involvement in the offences when interviewed the same night by Constable Crawford. He has expressed his remorse. Inmy view there is a real prospect of a successful rehabilitation. [46] Considering the mitigating factors and the aggravating factors, the circumstances of the offences and the personalcircumstances of Mr. Cogo, and balancing those, it is my view that a fit sentence could be achieved by applying principles of totality andof restraint.

On Count 1, I would have imposed a sentence of 20 months but, applying the totality and restraint principles, andconsidering that Mr. Cogo has spent the past 19 months under very restrictive bail conditions including house arrest, I will reduce that to3 months and 11 days. [47] In support of the principle of rehabilitation, there will also be a probation order of 3 years duration to follow the custodialsentences. [48] Mr. Cogo will you please stand? I hereby sentence you on Count 1 to a sentence of imprisonment for 3 months and 11 days.

Iwill grant you credit for the time you have spent in pre-sentence custody at a ratio of 1.5 to 1, being 11 days. That will leave a further 3months to be served on Count 1 in a provincial correctional institute. On Count 2, I sentence you to a term of one year, consecutive tothe punishment in Count 1. On count 3, I have found you guilty but I will now enter a conditional stay on that count pursuant to theprinciples of R. v. Kieneapple. On Count 4, I sentence you to a 3 month sentence that will be served concurrently with the sentence incount 1.

I will also impose a probation order to follow that will be for a term of 3 years. [49] The terms of the probation order will be as follows.

1. Report in person, no later than 4:00pm on the next business day following your release, to a probation officer at Richmond Community Corrections located at 210 - 7577 Elmbridge Way, Richmond, B.C. and thereafter as and when and in the manner directed by your probation officer. 2. On your initial report to your probation officer, provide your residential address and contact telephone numbers and not change either your address or your contact telephone numbers without the prior written consent of your probation officer. 3.

Attend for such counselling, treatment and assessments as your probation officer may direct, such counselling, treatment and assessments may include but are not limited to, treatment for alcohol or drug abuse. 4. Attend the Forensic Outpatient Clinic located at Suite 300 - 307 West Broadway, Vancouver, B.C. for assessment, counselling and treatment as directed by your probation officer. 5. Attend school or seek and maintain employment as directed by your probation officer. 6. Have no contact directly or indirectly with Zi Li Chen. 7. Have no contact directly or indirectly with Mahamed Osman Halane. 8.

Not possess any firearms as defined under the Criminal Code , or imitation firearms. 9. Not possess any knives except for the immediate purpose of preparing or consuming food or for the purpose of legitimate employment. Where knives are required for legitimate employment they are to be possessed only at your home and your place of work and while travelling directly between your home and your place of employment without stopping en route. [ 50 ] Pursuant to

Section 487.051 of the Criminal Code , I order that you provide such samples of bodily substances as are reasonably required for forensic DNA analysis. [ 51 ] Pursuant to

Section 109 of the Criminal Code , you will not be in possession of any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance and any related authorizations, licenses and registration certificates for life. [ 52 ] I will extend the time to pay any Victim Fine Surcharges applicable to 2 months after your release from custody. ______________________________ The Honourable Judge P. Chen Provincial Court of British Columbia