R. v. Mullings, 2011 ONCJ 819

Citation: R. v. Mullings , 2011 ONCJ 819 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ANTHONY MULLINGS R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE MR. JUSTICE P. TETLEY on, June 22, 2011 at Newmarket, Ontario APPEARANCES: T. Vandenende Counsel for the Crown E. Sapiano Counsel for A. Mullings ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S WITNESSES IN-CH CR-EX RE-EX Error! No table of contents entries found.

******* E X H I B I T S EXHIBIT NUMBER PUT IN ON PAGE Error! No table of contents entries found. ******* Transcript Ordered........................ Transcript Completed...................... Ordering Party Notified................... TETLEY, J. (O.C.J.): On March 1st, 2011 Anthony Mullings was found guilty of one count of trafficking in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act.

In addition, the defendant was found guilty of a series of firearm related offences including the following: Unlawful possession of a loaded prohibited firearm a Smith and Weston 357 magnum, contrary to s. 95(1) of the Criminal Code ; Unauthorized possession of a prohibited weapon in a motor vehicle contrary to s. 94(1); Unlawful possession of a 357 magnum handgun, a prohibited weapon, without being the holder of a licence permitting such possession contrary to s. 91(2); Careless storage of a firearm and ammunition contrary to s. 86(1); Possession of a firearm contrary to a prohibition order, s. 117.01, and similarly, possession of ammunition contrary to a prohibition order and contrary to the same section; and, Possession of a prohibited weapon for a purpose dangerous to the public peace s. 88(1).

The Crown elected to proceed by indictment on all charges. The defendant elected to be tried in the Ontario Court of Justice on a Judge alone basis. At the conclusion of the trial the defendant, through legal counsel, acknowledged that the drug trafficking count had been established. The issue of knowledge and control by the defendant of the referenced firearm and ammunition was identified as the single triable concern. On March 1st, 2011 I concluded the Crown had established the defendant to be in possession of both the prohibited firearm and related ammunition.

At the time of the commission of these offences, on June 2nd, 2010, the defendant was subject to two separate lifetime firearms prohibition orders. A pre-sentence report was requested by Mr. Sapiano on behalf of his client. The initial report dated April 19th, 2011 was supplemented by further information in a supplementary report dated May 24, 2011. I would ask that both of those

reports, in due course, be filed as exhibits on sentence. The contents of the reports have been acknowledged as accurate. The report reveals the following criminal antecedents which are also acknowledged: January 1996 in the City of Toronto, Mr. Mullings was convicted of failing to comply with a recognizance contrary to s. 145(3). He received a sentence of four days on consideration of two days pretrial custody; October 18, 1996, in the City of Toronto, Mr. Mullings was convicted of use of a firearm during the commission of an offence and robbery.

He was sentenced to periods of incarceration of one year on consideration of eight months of pretrial custody and one day consecutive. The first of two lifetime prohibition orders was imposed; July 2nd, 1998, in the City of Toronto, Mr. Mullings was convicted of robbery with a firearm, four counts of that offence and disguise with intent. He received a penitentiary sentence of seven years and six months concurrent on each count with nine months pretrial custody noted and one year concurrent.

A second lifetime firearms prohibition order was imposed with respect to the offence of disguise with intent; July 30th, 1998, in Toronto, Mr. Mullings was convicted of possession of a

schedule one substance contrary to s. 4(3) of the Controlled Drugs and Substances Act . He received a sentence of ten days; On August 20th, 2002, while an inmate at Millhaven, he was convicted of possession of a weapon and sentenced to 30 days consecutive to the seven year and six month sentence he was serving; On November 23rd, 2006, in the City of Toronto, the final entry, careless storage of a firearm contrary to s. 86(2) – or careless storage rather of ammunition in this case, a bullet, and possession of a firearm or ammunition contrary to a prohibition order.

One day on each count concurrent was imposed with reference being made to six months and three days of pretrial custody. The pre sentence report reveals the defendant to be 33 years of age. He reportedly enjoys a close relationship with his mother. That much was evident throughout the course of the trial. He also enjoys the support of his brother and extended family and indicates, through them, that employment opportunities are available to him, or likely to be available, upon his release from prison. The defendant has a grade 10 education and has variously been employed as a general labourer.

The defendant’s formal education and periods of legitimate employment have been interrupted by several extended periods of incarceration. Mr. Mullings has been in conflict with the law since he turned 14 or 15 years of age according to his mother. At the time of the commission of the offences before the court the defendant had no legal source of income and was reportedly living alone or, alternatively, with his brother. The defendant’s adult criminal history, as noted, dates back to 1996.

He has been previously incarcerated on six separate occasions including a penitentiary sentence of 7.5 years, that he received in the summer of 1998. The defendant violated his parole and was recommitted to the penitentiary in January 2006. He has previously been convicted of weapons related offences on four separate occasions. The defendant has indicated a financial motivation for his continuing involvement in acts of criminal misconduct. He is reportedly amendable to a period of community supervision and, interestingly enough, has never previously been subject to a probation order as an adult.

SENTENCING PRINCIPLES In determining the appropriate sentence to be imposed in this matter, reference is made to s. 718 , s. 718.1 and s. 718.2 of the Criminal Code .

Section 718 provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of a just sanction. The sanction to be imposed must have one or more of the following objectives: (

a) denunciation of unlawful conduct; (

b) deterrence of both the offender and others like minded;

(

c) where necessary separation from society; (

d) rehabilitation; (

e) reparation for the harm done - or reparation for the harm done to others and society at large (

f) the promotion of a sense of responsibility in offenders and an acknowledgement of the harm done to specific victims and to the community at large.

Section 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Finally s. 718.2 codifies the number of other sentencing principles. Some of the applicable noted directives include, s. 718.2(a), which provides that a sentence should be increased or reduced to account for the relevant aggravating or mitigating circumstances relating to the offender. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, s. 718.2(b).

A combined sentence, involving consecutive penalties, should not be unduly long or harsh, s. 718.2(c). Other applicable statutory provisions include s. 95(2). That

section provides for a three year maximum sentence on conviction for a first offence of possession of a loaded prohibited firearm. OTHER SENTENCING CONSIDERATIONS In determining the appropriate sentence to be imposed in this matter consideration is given to the aforementioned principle of totality of sentence codified in s. 718.2 (

c) of the Criminal Code ; the circumstances of the offence, and, the personal history and present situation of the offender.

In addition, note is made of the following aggravating factors: The fact the defendant remains subject to two lifetime firearm prohibition orders that were in effect at the time of the commission of the present offences; the offender’s criminal record that includes previous violent firearms related offences; the fact the handgun in issue was loaded and found concealed in a motor vehicle, a motor vehicle that had been recently used to affect a drug transaction; the significant potential for violence and risk to public safety presented by the loaded firearm and related ammunition in these circumstances.

THE MITIGATING CIRCUMSTANCES On behalf of Mr. Mullings, Mr. Sapiano notes the fact the offender is just 33 years of age and that he enjoys the support of family. These facts are viewed as being capable of offering a tangible reason to believe there are good prospects for rehabilitation upon the offender’s release. Counsel notes the fact the trial was restricted to the issue of knowledge alone and was conducted in the court of first instance. Reference is made to the fact the loaded firearm was not used, or even brandished, and the relatively low level of the drug transaction in issue.

These are both factors cited by the defence as being consistent with the exercise of extremely poor judgment by an offender without any known ties to gang related criminal organizations or other forms of organized criminal activity. THE SENTENCING POSITION OF THE PARTIES THE CROWN’S SENTENCING SUBMISSIONS On behalf of the Crown Mr. Vandenende submits a sentence of 10 to 12 years is appropriate on consideration of the facts in issue, the offender’s significant and related criminal antecedents and the relevant legal considerations applicable to this matter.

In support of this submission the Crown references the offenders previous convictions and the factual allegations supporting those convictions. Particular note is made of the various entries on the offender’s criminal record relating to the use or possession of firearms. These offences include convictions for robbery and use of an imitation firearm while committing an indictable offence. These charges arise from a February 1996 home invasion style robbery where the offender and a second assailant entered a residence while both were armed with what appeared to be handguns.

During the commission of the robbery that ensued the offender brandished the firearm and pointed it at the victim’s face before leaving the premises with a quantity of jewelry valued at approximated $200.00. On a plea of guilty to one count of robbery and use of a firearm, or imitation firearm, while committing an indictable offence, the offender received a sentence of one day for the robbery on consideration of eight months of pretrial custody and one year consecutive for the firearms offence plus a lifetime firearms prohibition order.

A July 1998 conviction for robbery for which the offender received the equivalent of a nine year sentence, seven years and six monthswas imposed with consideration of nine months of pretrial custody. This offence involved the offender’s armed participation in another home invasion style robbery. The offender and his two accompliceswere all armed with the offender brandishing a .22 calibre rifle with a 100 round clip that resembled a military type assault rifle. Therifle was subsequently recovered by the police shortly after the incident and found to be unloaded.

Several of the residents sustainedinjuries during the incident. The robbery itself involved several of the household occupants who were relieved of monies totaling$115.00. The incident reportedly had its genesis in the fact the offender was displeased with the quality of the drugs he had receivedfrom one of the residents in an earlier transaction. Several other convictions for weapons related offences followed including an August2002 conviction for possession of a homemade pick type knife while the offender was serving time at Millhaven for the 1998 robberyconviction.

Finally, convictions were registered on November 23rd, 2006 for the offences of careless storage of ammunition and possession ofammunition, a single 38 calibre bullet, in contravention of two pre existing lifetime firearms prohibition orders. A one day sentence wasimposed on consideration of six months and three days of pretrial custody.

In addition to the offender’s extensive record for firearm or weapons related offences the Crown also references the following additionalsentencing considerations: the fact the easily accessible loaded 357 magnum, along with 50 rounds of ammunition, was hidden in thecar that had been utilized to facilitate a drug transaction; the primary sentencing considerations of deterrence and denunciation; theoffender’s largely positive pre-sentence report and his supportive extended family, who are present here today; the absence of anytangible sign of remorse; the limited prospect for rehabilitation; and, the need for a deterrent sentence that will reflect the seriousness ofthe offence and the applicable principles of sentencing referenced in s. 718, 718.1 and 718.2 of the Criminal Code.

SENTENCING SUBMISSIONS BY THE DEFENCE On behalf of Mr. Mullings, Mr. Sapiano requests consideration of a sentence in the range of six to eight years.

Although certain of thefactors cited in support of this submission have previously been reviewed, in totality, the factors referenced include the following: Therelatively modest nature of the underlying drug offence which was nonviolent; the absence of any other violence; the fact the firearm inissue in this case was not used or even brandished by the offender; a purported gap in the offender’s criminal antecedents; the confirmedfamily support enjoyed by the offender that is contended, as noted, to offer a factual basis upon which the court might conclude theoffender has a reasonable prospect of rehabilitation on his release from prison; the absence of any evidence suggesting gang affiliation orinvolvement in organized criminal activity; the absence of a formal s. 727 notice by the prosecution requesting imposition of anincreased penalty for certain of the firearms related offences of which the offender has been convicted; and, consideration of the mannerin which the trial was conducted, a trial that was restricted in large answer, as noted, to consideration of the issue of the offender’sknowledge of the handgun in issue.

Mr. Sapiano submits a sentence of six to eight years constitutes a significant deterrent sanction for the offences in issue when viewedwithin the context of the offender’s previous criminal sanctions. A sentence in the range suggested by the Crown is submitted as beingoverly punitive or in the words of the defence “crushing” and likely to result in the extinguishment of any hope for rehabilitation orprospect for reclamation of the offender in the future.

ANALYSIS AND CONCLUSION In determining the appropriate sentence to be imposed in this matter I have noted the circumstances of the offence, the largely positivecontent of the pre sentence report, the defendant’s extensive and related criminal record, the submissions of counsel and the referencedstatutory provisions of the Criminal Code. I have also considered the applicable principles of sentence as illuminated by the case lawcited by counsel including Regina v. Ferrigon (ON SC), [2007] O.J. No. 1883, Regina v. Manning [2007] O.J. No.1205, Regina v. Williams 2010 ONSC 1698 , [2010] O.J. No. 1324, Regina v.

Dass O.J. No.1161, January 18, 2008, Reginaand J.G [2005] O.J. No. 4599. These cases serve to inform and confirm that the primary sentencing considerations in circumstancesinvolving firearms and drug trafficking are deterrence and denunciation. Similarly, deterrence and denunciation are of paramountimportance when considering the appropriate range of sentence to be imposed in circumstances involving an offender with an extensiverecord of violence involving firearm related offences.

In determining the sentence to be imposed I have considered the nature and extent of the offender’s criminal record, his prospects for

rehabilitation and the family support he enjoys. I have also considered the contended gap in the offender’s record which I attribute largely to the fact the offended has been incarcerated for extended periods of time in the past rather that any confirmed prolonged disavowment of what appears to be a committed criminal lifestyle. I’m also mindful of the so called step principle that suggests more punitive sanctions must be considered in order to deter conduct when lesser sentences have failed to achieve that end.

While some debate exists in the case law as to whether separate consecutive sentence ought be imposed in circumstances involving the breach of the firearms prohibition order, I accept the analysis proffered by Justice Nordheimer as heard by the defence in Regina v. J.G. , cited at paragraphed 43.where he concludes possession of a prohibited weapon in contravention of a prohibition order is “...an aggravating factor that justifies an increase in the overall sentence that might otherwise be imposed” ... but not necessarily the imposition of separate consecutive sentence.

In the event that logic is found to be faulty the totality of sentence about to be imposed is in my opinion viewed, even if adjustment to its constituent parts may be required, as reasonable in the circumstances. Having considered all of the aforementioned factors I conclude the appropriate sentence, on consideration of 386 days or 13 months of pretrial custody, to be as follows. If you would please stand, Mr. Mullings? With respect to the offence of possession of a loaded prohibited weapon contrary to s. 95(1) of the Criminal Code , nine years.

With respect to possession of prohibited weapon in a motor vehicle contrary to s. 94(1), nine years concurrent. With respect to the offence of unlawful possession of a prohibited weapon without being a holder of a licence permitting such possession contrary to s. 91(2) the maximum period allowed by law, five years concurrent. With respect to counts of careless storage of a firearm and careless storage of ammunition contrary to s. 86(1) the maximum penalty permitted by law, five years concurrent.

With respect to possession of a firearm and ammunition contrary to a firearms prohibition order, contrary to s. 117.01 count six and seven, nine years concurrent. With respect to count of possession of a dangerous weapon contrary to s. 88(1), nine years concurrent. With respect to the drug trafficking offence, three years concurrent. I accept the submissions of the Crown as to the appropriate range of sentence and the stated rationale for the Crown’s sentencing submissions given your criminal antecedents, the gravity of the offence and your degree of responsibility for that offence.

I do not view this sentence as being unduly onerous given the magnitude of past sentences that do not appear to have deterred your conduct and your continued involvement in criminal activity involving firearms. I wish for the sake of your family and, for your own sake, that it were otherwise. You seem intent, for reasons that are lost on me, to continue to involve yourself with firearms related offences even after receiving the equivalent of a nine year term in the past. The blatant disregard of two separate prohibition orders is an extremely aggravating factor on sentence.

This sentence, based on the case law submitted, is viewed as being consistent with that imposed on similar offenders in like circumstances. In addition a DNA profiling order will be ordered and an additional, now a third, s. 109 lifetime firearm prohibition imposed. Those are the reasons for sentence. MR. SAPIANO: Your Honour could I just seek clarification. I’m pretty sure it’s nine years on top of pretrial custody time words? THE COURT: Yes nine years on top of pretrial. MR. SAPIANO: On top? THE COURT: I’ve accounted for the pretrial custody the sentence otherwise I would of imposed was ten.

MR. SAPIANO: Yes. Thank you, Your Honour. MR. VANDENENDE: Thank you, Your Honour. The Crown also asks for a forfeiture order with regard to all of the items seized by York Region Police? THE COURT: Yes, I neglected to include that but there will be a forfeiture order for all of the items seized. Those items will be forfeit to the Crown for the purpose of destruction. THE CROWN: Thank you. MR. SAPIANO: Very good. THE CROWN: And that’s in particular reference to the... THE COURT: Thank you Mr. Sapiano. MR. SAPIANO: Thank you, Your Honour. Thank you for all your attention.

MADAME CLERK: Your Honour, I – I think it was two reports you want to make as an exhibit? THE COURT: Yes, I have them here. Lets take a break gentlemen then we’ll address the other charges. ... ******** I Cindy Liscombe, certify that this document is a true and accurate transcript of the recordings of Regina v. Mullings in the Ontario Court of Justice held at 50 Eagle Street, Newmarket, Ontario taken from recording No. 4911-200-273/11 which has been certified in Form 1.

November 7, 2011 Cindy Liscombe Date Signature Photostatic copies of this transcript are not certified and have not been paid for unless they bear the original signature of C. Liscombe, and accordingly are in direct violation of the Ontario Regulation 587/91 , Courts of Justice Act, January 1, l990