R. v. Gafoor Date:, 2012 BCPC 336

Citation: R. v. Gafoor Date: 20120723 2012 BCPC 0336 File Nos: 193651-3-BC, 193651-4B, 193658-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MOHAMMED SHALMEEN GAFOOR ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: C. Godlewska Counsel for the Defendant: L. Rudovica Place of Hearing: Surrey , B.C. Date of Hearing: July 23, 2012 Date of Judgment: July 23, 2012 [ 1 ] THE COURT : This is quite an unusual case. Mr. Gafoor, on April 28th, 2012, went to a Knight and Day Restaurant, ordered

[ 1 ] THE COURT : This is quite an unusual case. Mr. Gafoor, on April 28th, 2012, went to a Knight and Day Restaurant, ordered something to eat, had some drinks and then when he was given the bill he made it known to the manager that he claimed to be strapped with material that would blow up if he moved. He demanded that the bus girl be brought over to him. When asked why, he said he had his reasons, and so the manager did what he was told. But luckily for everyone, when he did that and the girl came over, Mr. Gafoor moved and nothing happened.

The manager, being a very quick-witted man it seems, figured out that Mr. Gafoor was bluffing, called the police, and he was arrested. [ 2 ] I am not going into great detail about what Gafoor said, but he made it clear that people would get blown up if they didn't do what he said. [ 3 ] He was on a s. 810.2 recognizance not to consume alcohol, and that recognizance also had a term that he obey a curfew.

The night before, the 27th, the police had made a check on where he was supposed to live and he wasn't there; so he has pleaded guilty to breaching the recognizance on the 28th by consuming alcohol, and on the 27th by failing to abide by his curfew. [ 4 ] The maximum sentence for breaches of the recognizance is two years if the Crown proceeds by indictment, which it has. The maximum sentence for uttering threats is five years if the Crown proceeds by indictment, which it has. [ 5 ] This man has an unusual record.

I would say it is remarkably unusual in the sense that he has committed similar offences to this at Knight and Day Restaurants before. He has gone in, and the Crown went through it, in Burnaby, on two separate occasions he went into Knight and Day Restaurants, ate food, and alleged he had explosives and that he would blow people up unless they did what he said. In both cases the police were called; all kinds of action had to be taken to make sure no one got hurt, and then he was arrested and received some time in prison.

Most significantly a very similar offence to that occurred in Surrey in 2007 where he committed far worse offences that started off in a similar pattern: had something to eat, had something to drink, and told the manager that he was going to blow people up. In that case he took hostages, eventually released them, kept one hostage, a young woman whom he sexually assaulted, forced to drink, and the police eventually rushed in and arrested him. He pled guilty to that and he got a sentence of five years on that after doing ten months in custody.

He was unable to function on parole; he served every day of that sentence, and then when he got released he was put on an 810.2 recognizance. [ 6 ] Aside from the offences I have just talked about, the very similar ones, he has got a record that goes back many years, and he has got convictions for crimes intermittently throughout the '90s and into the 21st Century, and frequent convictions, except by 2007 when he got the long sentence and he wasn't being convicted of crimes because he was in jail. [ 7 ] The psychological report paints a pretty bleak picture. Mr.

Gafoor is someone who has had, I suppose, a difficult life, but he has never really lived on his own, never had a job, never been an independent citizen. He has had a pretty difficult relationship with his father. His father may have been abusive to him as a child, and communication with his father may even trigger him to commit offences. [ 8 ] It is difficult to understand Mr. Gafoor. I don't think he understands why he does what he does. The assessment by Dr. LaTorre suggests that Mr.

Gafoor is not suffering from a mental illness such as schizophrenia, nor is he psychotic, out of touch with reality, or bipolar or something like that. He may well have a personality disorder which makes it difficult for him to function in society, but it is not a mental illness which leads someone not to understand what they are doing. And I don't think he really understands why he does what he does. [ 9 ] Now, at the same time he has got these eerily similar offences where he goes to restaurants, buys something to eat, and then threatens to do something. As Ms.

Godlewska pointed out, the last time he did this the activities escalated tremendously, and in this case he asked to have the young woman brought over to him again under the threat of having a bomb, but it didn't work this time, probably because he was intoxicated and he betrayed himself. So that is a very serious circumstance. [ 10 ] However, I have got to caution myself, and Ms. Godlewska quite properly put to me that if he had carried out what he probably intended to do, he would get a much longer sentence. That is true, but he did not carry it out. As Ms.

Rudovica says, he did not cause harm this time to anyone, no physical harm, no hostage-taking, and I can only sentence him on what he did, not on what I think he was going to do. He could not even be charged with attempting to do, for example, sexual assault or something like that, or hostage-taking. However, it is quite proper for me to consider how similar this is to the prior offences, and I think it is fair to say that had there not been a very quick-witted manager there, something far worse could have happened. So these are very serious circumstances. [ 11 ] What are the governing principles here?

Well, the governing principles here are first of all that this man does have to, I agree with the Crown, be separated from society, isolated from society because if he is out of prison it is a very strong likelihood he will commit another offence just like the one he committed, I think. The pattern is quite striking. Secondly, there has to be specific deterrence and sentence has to be imposed to force home to this man that if he continues to do things like this, he will go to jail.

It is also important to note that he was on a recognizance under s. 810.2 of the Criminal Code which he wilfully and quickly disobeyed, showing again that there is a real danger if he is out, even under orders of the court, that he won't obey them. [ 12 ] Rehabilitation is something I always have to consider, but this is one of the bleakest reports I have ever read of a person. He has virtually done nothing to try and change what he can do, or what he has been doing. He has been unable to control his behaviour in any significant way. And he has no understanding, I think, of why he does these things.

And so the chances of rehabilitation, as set out in the risk assessment by Dr. LaTorre, are virtually nil. Virtually nil. [ 13 ] So what is the appropriate sentence here? I know Ms. Rudovica very properly said I can consider a conditional sentence because the offence here is not as serious as the prior one because the consequences are just not there. I think it is quite appropriate for her to say I should consider a much lower sentence than the Crown wants.

But even if I were to consider a much lower sentence than the Crown wants, in my view I could not give a conditional sentence with electronic monitoring because there is a certainty that it would endanger the public to have a conditional sentence. There is no hope whatsoever that he would obey any conditions, so I could not consider a conditional sentence, even if the sentence, however imposed, would be less than two years.

[ 14 ] But I do have to take into account, although I have just pointed out what I say are the very, very serious circumstances surrounding this case which show that the public safety has got to be protected, and I will just repeat them. He was on an 810.2 recognizance which means that the court had determined he was a danger to commit serious offences; he breached that right away. The circumstances of this offence were uncannily similar to the prior offence, which is a very serious one, and it shows a continuing pattern of behaviour, over the last 15 years, of going into restaurants and doing this kind of thing.

And then finally, a sentence has got to be imposed that shows him, if it can, that he has got to stop it. Rehabilitation is really unlikely. [ 15 ] So what is a fit sentence here? Of course, counsel have not been able to give me any cases because there aren't any cases on circumstances like this, and I just have to go on principles. The maximum sentence on the uttering threats charge is five years; two-year sentences on the other. It seems to me that if I were to impose consecutive sentences on the breach of recognizance it might be somewhat of a harsh sentence. I propose to impose concurrent sentences.

As I say, I am not bound to find this man is the worst of offenders or these are the worst of offences to impose a maximum sentence. These are not yet though, in my view, circumstances where I should impose the maximum sentence. [ 16 ] In my view, a proper sentence in all the circumstances here would be a sentence of three years and six months. I will give him credit for having served three months in custody. So on Information 193658, the sentence I would have imposed would have been three years, six months; the sentence is three years and three months.

And I would have imposed a six-month sentence on each of the breaches; I give him credit for having served three months on each of those, and the sentence on each of them will be three months concurrent to each other and concurrent to the three-year-three-month sentence. [ 17 ] I think, Ms. Godlewska, on the uttering threats s. 109 of the Criminal Code applies, does it? [ 18 ] MS. GODLEWSKA: He is under a 109 lifetime. [ 19 ] THE COURT: I'll make another one then. I make a lifetime prohibition under s. 109 . [ 20 ] And I order that DNA samples may be taken pursuant to s. 487.051.

I think it has got to be a primary designated offence. Maybe not. It doesn’t really matter to me. I am making the order, if DNA has already been taken, it need not be taken again. Can you check to see if it's mandatory or secondary? [ 21 ] MS. GODLEWSKA: I am looking. There is usually a piece of paper in our file. [ 22 ] THE COURT: Well, we can help Madam Clerk on that later. [ 23 ] There will be no victim fine surcharge. I think that covers everything, doesn't it? [ 24 ] MS. GODLEWSKA: Those are all the ancillary orders I can think of, Your Honour. [ 25 ] THE COURT: Okay.

Thank you. [ 26 ] THE CLERK: My notes show that it's secondary. [ 27 ] THE COURT: Okay. Secondary designated offence. I make the order, but they'll only take it if they haven't taken it already. (REASONS FOR SENTENCE CONCLUDED)