R v Mammo, 2023 MBPC 12

CITATION: R v Mammo, 2023 MBPC 12 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: His Majesty the King ) A. Wood ) for the Crown ) and ) ) ) Simalew Tolcha Mammo ) E. Roitenberg ) for the Accused Accused ) ) ) Reasons for Decision: ) Delivered: March 15, 2023 DEVINE, P.J. INTRODUCTION [ 1 ] On the day of trial, 32-year-old Simalew Mammo pleaded guilty to possession of a loaded, prohibited firearm contrary to section 95(1), and for violating three court orders prohibiting him from possessing a firearm, contrary to

section 117 of the Criminal Code . [ 2 ] He was carrying a loaded, semi-automatic handgun in a crowded nightclub where a gunfight between two groups erupted. There is no evidence that he brought the gun with him to the nightclub. But he was carrying it when animosities peaked, and brandished and pointed it. During the melee one person was shot and seriously injured. That shot was not fired by Mr. Mammo. [ 3 ] Both the type of firearm and the circumstances in which Mr.

Mammo possessed the firearm constitute it as a “crime gun” in law. [ 4 ] The Crown is seeking a sentence of six years: five years for possession of the loaded handgun and one year consecutive for violating his three firearms prohibition orders. The defence is seeking a sentence of three and one half years: three years for possession of the firearm and six months consecutive for violating the prohibition orders. FACT

SUMMARY [ 5 ] Both the Crown and defence emphasized particular details of what happened that night, just before 4:00 a.m. I have considered those details. The Crown provided a diagram and outlined what the video surveillance of the nightclub showed. Tempers flared between two groups of people in the nightclub. Some members of the two groups were armed, including Mr. Mammo, who was carrying a semi-automatic handgun. At one point the armed Mr.

Mammo was being held back by others, but broke free. [ 6 ] It was a gun fight, replete with armed members running, positioning themselves behind the bar, pointing their guns, at least one shot was fired and a person was seriously injured, some members fled, others repositioned themselves. After the shot was fired Mr. Mammo was shown, firearm pointed out, to move towards the stairwell where an opponent had fled, work the slide of his gun and peer around the corner to ensure the man had left. [ 7 ] There were about 50 people in the nightclub.

During the gunfight, uninvolved customers and staff were running, hiding, and crawling to avoid injury or death.

SENTENCING PRINCIPLES AND OBJECTIVES [ 8 ] Any sentencing decision must be understood within the context of the purpose of sentencing. [ 9 ] The fundamental purpose of sentencing as set out in

section 718 of the Criminal Code is “to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society”. [ 10 ] The overarching principle in sentencing is that the sentence must be proportional to the seriousness of the offence and the moral culpability of the offender. In this case, the offences are extremely serious and the moral culpability of the offender is high. THE SERIOUSNESS OF THE OFFENCES [ 11 ] Gun crime is rampant and dangerous in Canada, including in Winnipeg, where this offence occurred. Although the mandatory minimum three-year sentence for carrying a loaded, prohibited firearm (

section 95 of the Criminal Code ) was struck down by the Supreme Court of Canada in the case of R v Nur , 2015 SCC 15 , sentences for possession of loaded prohibited firearms that can be characterized as “crime guns” remain very high. The Court found the mandatory minimum to be unconstitutional because it captured not only those who possessed guns for criminal reasons, but also those law- abiding citizens who may have stored an unloaded firearm safely with ammunition nearby.

While it struck down the mandatory minimum, the Supreme Court did not depart from the law’s position that serious or exemplary sentences are warranted where the gun offences demonstrate criminal behaviour. Thus, even in that case, where Nur was only 19 years of age, did not have a criminal record, and did not threaten anyone with the loaded handgun, the Supreme Court upheld his sentence of 40 months.

That is more than the defence is seeking in this case. [ 12 ] In the recent case of R v Braun , 2023 MBCA 4 , the Manitoba Court of Appeal upheld a sentence of 40 months for possession of a sawed-off shotgun found by police in the basement of a home where the accused slept, between a couch and a wall, with ammunition nearby. The sentence was imposed after trial, the accused had weapons convictions and there were four children living in the home.

Of note, the Court of Appeal distinguished this case from one where the accused possessed the gun or ammunition in a public setting. [ 13 ] The law recognizes a range of gun offences, with those that resemble regulatory infractions at one end of the scale, to true criminal offences at the other end of the scale. The maximum sentence for section 95(1) is 10 years. The maximum sentence for violating a firearms prohibition order is also 10 years. [ 14 ] The offences committed by Mr. Mammo are at the true criminal offences end of the scale. The handgun was used in a gunfight at a nightclub.

The character of the firearm is aggravating: it is a semi-automatic handgun. [ 15 ] Although Mr. Mammo did not fire the gun, his actions of pointing it, ensuring that one of his opponents had left, and not leaving the bar when he had the opportunity to do so, must be taken into account. [ 16 ] Mr. Azidi, the victim of the shooting, suffered extremely serious injuries. He was shot in the back of the pelvis, damaging his rectum and pelvic vessels. He has undergone three abdominal surgeries and now must use a colostomy bag. Mr.

Mammo bears some responsibility for the physical and psychological impact this gunfight has had on the victim. The harm in this case is not speculative or hypothetical. In fact, there was life-altering impact as a result of this gunfight. [ 17 ] The shot was not fired at Mr. Azidi. It ricocheted off the floor and struck him. That singular fact demonstrates why carrying loaded guns in hyper-charged situations, criminal situations and crowded situations is so dangerous. [ 18 ] The defence argued that Mr. Mammo went to the nightclub to attend an engagement party for friends.

He did not bring the gun to the nightclub that night, but obtained it from a friend when the argument at the club erupted, arming himself in that charged situation. He argued that this case should therefore be distinguished from cases where offenders bring a gun with the intention to frighten or harm. He distinguished this case from Nur , where the offender had arrived at the community centre with the gun already in his possession. He argued that Mr. Mammo would have raised self-defence if the matter had proceeded to trial. [ 19 ] While I accept that Mr.

Mammo did not come to the club with a gun, he very quickly obtained one and used it to frighten, intimidate and possibly to shoot members of the other faction. Moreover, there were no shots fired nor injuries sustained in the Nur case, so whatever mitigating effect the lack of intent to bring a firearm to the club might have for Mr. Mammo, it is met or outstripped by the aggravating effect of what occurred when he did arm himself. [ 20 ] The Crown observed in her argument that Mr.

Mammo did not leave the club when he had an opportunity to do so, but instead, acted aggressively in heading back to the stairs to ensure an opponent had left. She also pointed out that several people were obviously trying to get away from Mr. Mammo. Mr. Mammo contributed to their fear and to the atmosphere of terror. Everyone’s safety was at risk. [ 21 ] There is also the question of how to treat the offence of violating a firearm prohibition order. [ 22 ] Mr.

Mammo has been subject to weapons prohibitions three times in the past, in 2012, 2016 and 2018, when he was sentenced for drug trafficking, production of drugs and possession of a firearm in a vehicle. All three prohibition orders were valid at the time of the offence. Violating an order to possess no firearms is a direct affront to the Court’s imposition of a public safety measure. Weapons prohibitions are imposed to protect the public from misuse of firearms.

They are not to be treated as “administrative” crimes such as less serious breaches of probation or release orders, as noted by Justice Mainella in R v Coutu , 2020 MBCA 106 : Sentencing courts should not treat contravening a prohibition order in a manner like failing to attend court or to comply with a condition of judicial interim release or probation; it is not a run-of-the-mill breach offence. (at para 34)

[ 23 ] Also, it is aggravating that Mr. Mammo was violating not one, but three firearms prohibition orders ( See Coutu at para 35 ). [ 24 ] Because different societal interests are involved in violating a firearms prohibition and possessing an illegal firearm, the sentence for violation of a

section 109 order is to be served consecutive to the sentence for possession of a firearm ( Coutu at para 33 ). [ 25 ] In considering parity, there is scarce need to go further than the leading case involving sentencing for section 95(1). The case of Nur involved a 19-year-old offender, without a criminal record. A man ran into a community centre in a high crime area of Toronto, where gun violence was a serious problem. He told staff in the community centre he was afraid of someone outside waiting for him. Staff put the community centre on lockdown and called police who arrived moments later.

Police saw four men including Nur standing outside the community centre, who scattered. Police were able to apprehend Nur after seeing him throw a loaded, .22 calibre semi- automatic firearm under a car. The Supreme Court struck down the mandatory minimum three-year sentence for section 95(1) on the basis that it could capture behaviour closer to the regulatory end of the scale of gun offences. The Supreme Court found that Nur ’s behaviour was on the criminal end of the scale, notwithstanding that he had not been involved in any threatening behaviour, nor was it clear when, how or for how long he had the handgun.

Both the Ontario Court of Appeal and the Supreme Court of Canada upheld the 40-month sentence. Nur had a supportive, law-abiding family who came to Canada as refugees. At the time of the offence, he was going to high school. He was doing well in school and planned to go to university. He worked at a number of part-time jobs and volunteered in the community. Teachers and past employers praised his performance and potential.

One teacher described him as “an exceptional student and athlete who excelled in the classroom and on the basketball court . . . an incredible youth with unlimited academic and great leadership skills.” [ 26 ] Those circumstances, and the need to denounce increasing gun violence in Winnipeg, suggests a sentence lengthier than the 40 months imposed in Nur . As Chief Justice McLachlin stated, “It remains appropriate for judges to continue to impose weighty sentences” in

section 95 cases where the circumstances are similar to Nur or this case (at para 120 ). [ 27 ] I also take into account Mr. Mammo’s background and other mitigating circumstances however. The proportionality analysis requires that I consider the degree of moral culpability Mr. Mammo possessed in committing these offences. ASSESSING THE ACCUSED’S MORAL CULPABILITY [ 28 ] The typical markers of moral culpability point to a high level of moral culpability in this case. [ 29 ] Mr.

Mammo engaged in intentional risk-taking behaviour by carrying, pointing, brandishing and running around a crowded nightclub with a loaded, semi-automatic handgun. [ 30 ] The consequential harm of carrying crime guns is well known and borne out in this case, by the serious injuries to Mr. Azidi. [ 31 ] The normative character of Mr. Mammo’s conduct, that is, making a deliberate decision to possess the firearm at all, but especially in a crowded nightclub, seriously violates societal values. The dire consequences of gun crime is palpable, especially in the City of Winnipeg. [ 32 ] Mr.

Mammo also has a serious criminal record. It started in 2008 as a youth when he was convicted of possession of drugs, assault, possession of property obtained by crime and two counts of failure to attend court, for which he received a sentence of 78 days of custody and 18 months of probation. In 2009 he was convicted of another drug possession charge and a violation of his youth sentence, for which he received fines. In 2010 he was again convicted of drug possession and this time received a custodial sentence of three days.

In 2011 he was convicted of public mischief which netted a 30-day sentence, and failure to comply with a recognizance which netted a 15-day concurrent sentence. In 2012 he was convicted of two counts of failure to comply with a recognizance, personation, and drug possession for which he received a four-month sentence. In the same month in 2012 he was convicted of possession for the purpose of trafficking a scheduled substance and received a two-year sentence and the first

section 109 firearms prohibition. In 2016 he was convicted of violating a condition of his recognizance by possessing a weapon, and as well, a

section 94 offence for possession of a loaded, semi-automatic handgun in a vehicle, and obstruct police. Defence pointed out that the facts of that case were that he drove his friend who had been shot to the hospital. The friend’s gun remained in the vehicle Mr. Mammo was driving and he was stopped by the police. He received a sentence of 440 days, which is just over 14 months, and his second firearms prohibition.

In 2018 he was convicted of section 7(1) of the Controlled Drugs and Substances Act , production of a scheduled substance, and received a sentence of three and one half years and his third firearms prohibition. When he was arrested for the offences before me, he was in possession of cocaine. He was sentenced to 45 days for that offence on June 27, 2022. [ 33 ] Mr. Mammo’s record disentitles him to leniency. It demonstrates that he knew exactly what he was doing.

The circumstances of his previous gun conviction where his friend got shot and he was sentenced to a lengthy jail term demonstrate that he is fully morally blameworthy in this case. [ 34 ] Mr. Mammo’s background must be taken into consideration in determining his moral culpability as well. Mr. Mammo is 32 years old. In 2004 when he was 13 years old, he came to Canada as a refugee from Ethiopia with his mother and sisters. He grew up in Central Winnipeg.

His life was positive until grade 10, when he succumbed to the financial struggles many new Canadians face, and being the only male in the family, he felt culturally and internally bound to assume the role of provider for his family. He turned away from his job at Dollarama and found easier ways to make money through crime. [ 35 ] Although there was not an Impact of Race and Culture Assessment (IRCA) report filed in this case, there was some information provided by counsel and contained in the letters of support that were filed that identify some of the challenges faced by Mr.

Mammo as a young, African teenager and then young man living in Central Winnipeg. Through my work as a judge in this court, I have seen many, many young people similarly placed to Mr. Mammo, succumb to crime. I recognize that this background impacts his moral culpability

in committing the offences. [ 36 ] Mr. Mammo’s mother is a single mother who came to Central Winnipeg with four young children, one of whom has a significant disability. There was no male role model for the only boy child, Mr. Mammo. [ 37 ] His sisters wrote of the “bad influences” and “wrong crowd” he began to hang out with. He took on the role “man of the house” at a young age and then actually became a parent as a very young man. He turned to alcohol and drugs to cope with the pressures facing him and his family. [ 38 ] Mr.

Mammo has a positive, pro-social family who came out to support him during this sentencing, as did the mother of his child, with whom he co-parents. [ 39 ] There were several letters of support filed by Mr. Mammo’s sisters, his former partner and mother of his child, and a business owner who has committed to providing Mr. Mammo employment. The letters describe a devoted friend and amazing father, selfless, kind. Even though he and his partner separated, he remains the “backbone” of her family.

His sisters described him as good-hearted, kind, smart, caring, always wanting the best for everyone, always there for everyone. [ 40 ] This conviction will have immigration consequences, as Mr. Mammo is a Permanent Resident and is already subject to a deportation order. Information relevant to the danger hearing was submitted in 2019. AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 41 ] The aggravating factors are that Mr. Mammo actually used the firearm in a gunfight, he did not simply have it tucked somewhere on his person.

It is not mitigating that he did not fire it, but obviously it would be more aggravating if he had. It is aggravating that this was a second floor, enclosed space where 50 people were in attendance. [ 42 ] It is significantly mitigating that Mr. Mammo pleaded guilty however. This was a trial that was set for five days; several witnesses would have been subpoenaed and there was at least one complicated legal issue, that of self-defence, that would have been raised. The guilty plea has eliminated any uncertainty about the outcome in this case. He has taken responsibility.

His guilty plea has saved significant court and police resources. The sentence must demonstrate to Mr. Mammo but to other offenders that there is some incentive to take responsibility for offending behavior by pleading guilty. The guilty plea also demonstrates remorse and is the first step in rehabilitation and future deterrence. SENTENCE [ 43 ] I have outlined how serious these offences are as well as Mr. Mammo’s high degree of moral culpability, which however is tempered by his life experience as a young, black African refugee living in Central Winnipeg who drifted to drugs and alcohol and the “wrong crowd”.

I also take into account the guilty plea and its significant mitigating effect on the sentence I would otherwise impose. [ 44 ] I have take those circumstances into account to reduce the sentence on the section 95(1) firearm offence to four and one half years rather than the five years sought by the Crown. Similarly, I will reduce the consecutive sentence for the weapons prohibition offence to six months, rather than the one year sought by the Crown. The overall sentence will be five years. [ 45 ] Subtracted from the five-year sentence is the pre-sentence custody Mr.

Mammo has served, which is 508 days, enhanced at a rate of 1.5 times for every day served, to 762 days, or a little over two years. [ 46 ] The following ancillary orders are made: -

Section 109 lifetime weapons prohibition on the possession of the firearm charge; -

Section 487.051(1) DNA order on the possession of the firearm charge. The sample is to be taken while in custody. [ 47 ] The victim surcharge is waived, as Mr. Mammo will be in custody for a considerable time. Original Signed by Judge Devine DEVINE, P.J.