)) HER MAJESTY THE QUEEN – v. –, 2011 ONSC 4165

CITATION : R. v. Abdi, 2011 ONSC 4165 COURT FILE NO.: CR11/50000257-0000 DATE: 2009/06/30 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – SHAKIR ABDI Accused )) )) )) )) ) ))) Stephanie Henderson, for the Crown Gordon Cudjoe, for the Defendant HEARD: June 28, 2011 REASONS FOR SENTENCE O’MARRA J.: [ 1 ] Mr. Shakir Abdi has been found guilty after trial of four bank robberies and the use of an imitation firearm in the commission of three of the robberies.

In each robbery, he approached the teller’s wicket in the bank and handed the teller a note demanding cash and co-operation or he would kill them. In three of the robberies, he showed or indicated he had a firearm readily available and he would use it. Mr. Abdi is here today to be sentenced for these offences. Circumstances of the Offences [ 2 ] In all of the robberies, Mr. Abdi was accompanied by an accomplice, a young offender named G.L.-M., who stood at the entrance to the bank and acted as a look-out as he went in to commit the robbery. [ 3 ] On June 11, 2009, Mr.

Abdi entered the Royal Bank branch at 235 Dixon Road and approached the teller, Mr. Laert Fociro at the counter. He handed a note across the counter to Mr. Fociro who recalled the note stating something to the effect of “Give me the cash or I’ll kill you, don’t make any sounds, 50s, 100s”. Nervously, he told Mr. Abdi he only had a $500 limit at which point, Mr. Abdi started to count down, “five, four, three, two, one” at the same time showing him the handle of a gun at his waist. Mr. Fociro could see that the firearm had a cylinder and it appeared to contain bullets.

He moved to central dispensary unit of the bank, obtained $4,000 and handed it over to the robber, who fled. [ 4 ] Mr. Abdi committed two robberies on June 15, 2009. The first robbery occurred at the Royal Bank Branch at 5968 Bathurst Street. There he approached teller, Dina Baghirova, and handed her a handwritten note, which read, “This is a robbery, follow instructions…if you make a scene I WILL KILL YOU. I want $10,000 in 20s, 50s, and 100s only”. (The note was left behind and later seized by the police was entered as Exhibit No. 21 on the trial.) In addition, Ms.

Baghirova said that the robber mumbled to her “I need cash” and he showed her the wooden handle of a gun in his waist. She told him she did not have cash at her wicket and she could only withdraw cash from a central dispensing unit. She turned to the unit where she obtained her withdrawal limit of $500 available to her and handed it over to Mr. Abdi. [ 5 ] Later that day Mr. Abdi entered the Scotia Bank branch at 325 Bamburgh Circle where he approached teller, Ms. Helen Lee.

He pushed a piece of paper at her that as she recalled said something in the nature of “Give me your money, don’t give me any trouble or I’ll kill you.” He also mumbled to her “Give me your money.” She had approximately $1,000 in the drawer and immediately handed it over to him.

[ 6 ] On June 24, 2009 Mr. Abdi entered the TD Canada Trust Branch at 418 The West Way and approached teller, Anjana Patel. He gave her a note which she recalled saying, “It’s a robbery, I want $10,000 cash.” She said she did not see a gun, but he had his hand inside his shirt and made a clicking sound like pulling the trigger of a gun. She retrieved $1,000 from their central dispensing unit and handed it over to him. Victim Impact Statements [ 7 ] Two of the four tellers prepared Victim Impact Statements, Dina Baghirova and Anjana Patel, entered as Exhibits #3 and #4 respectively.

Both described how they feared for their lives during the robbery, and the traumatizing effect it has continued to have on their working and personal lives. Ms. Baghirova wrote the following: The robbery was a horrifying experience. Due to the psychological disturbance I am still afraid of such an incident happening. This was the first time in my life I feared for my life. When I see a customer reminiscent of the robbery, or who looks suspicious, (it) reminds me of the robbery. As I interact with such customers, I feel scared, and it takes a great deal of effort.

It is especially hard when I inadvertently remember the robbery because once I do I keep thinking about it. To this day I still fear for my personal safety every day while I am at work. [ 8 ] Ms. Patel stated that the robbery was a very stressful situation for her and it has affected her in many ways. She stated: While working I get stressed when someone opens a folded paper in front of me. I panic thinking, “Oh my God, is this a note passer again?” When customers with similar descriptions come into the branch, it causes me to panic. I still have dreams about the robbery. It causes me anxiety.

I sometimes have sleepless nights, thinking about him coming back to the branch and killing me, once he has served his sentence. Sometimes I think he might follow me home and take revenge from my family. I am always worried about my kids and family, that he could harm them or take them away. [ 9 ] Although the other two tellers, Laert Fociro and Helen Lee chose not to provide victim impact statements, based on their evidence at trial, I accept it took a similar emotional toll on them. Ms. Lee said that she was very frightened and Mr.

Fociro stated that after he said he would kill him and started counting down, he became quite nervous. Circumstances of the Offender [ 10 ] Shakir Abdi is now 24 years of age. He has a lengthy criminal record of 9 separate entries commencing as a youth in 2003. His record is as follows: 1. May 29, 2003 Toronto Youth Court Possession of property obtained by crime over $5,000, fail to attend court, and two counts of fail to comply with recognizance. Sentence : Probation 2 years on each count concurrent 2.

June 3, 2003 Toronto Youth Court Possession of property obtained by crime over $5,000 and possession of break in instruments. Sentence : Probation 2 years. 3. Nov 30, 2004 Toronto Youth Court Robbery, disguise with intent, use of imitation firearm. Sentence: 40 days in custody and 20 days under community supervision, probation on each count concurrent. (11 months and 9 days pre-sentence custody) 4. Dec 2, 2004 Toronto Youth Court Obstruct Peace Officer, fail to comply with recognizance. Sentence : 10 days custody and 5 days under community supervision on each count concurrent. 5.

March 16, 2005 Toronto Obstruct Peace Officer, fail to comply with probation order. Sentence : 21 days on each count concurrent and 12 months probation (5 days pre-sentence custody). 6. February 16, 2006 Toronto Theft under $5,000 and fail to comply with probation order. Sentence : 1 day on each count concurrent and 1 year probation (6 months pre-sentence custody).

7. July 6, 2007 Toronto Unauthorized possession of a prohibited or restricted weapon, possession of firearm or ammunition contrary to a prohibition order and fail to comply with probation. Sentence : 9 months and 15 days on each count concurrent and (credit for the equivalent of 20 months pre-sentence custody) and probation 3 years, and mandatory prohibition order under s.109 8. February 25, 2010 Toronto Fail to attend court. Sentence : 30 days in Jail. 9. March 16, 2010 Toronto Fail to comply with probation order.

Sentence : 1 day in jail and credit for 45 days pre-sentence custody. [ 11 ] The information with respect to Mr.Abdi’s background is derived largely from the Pre-Sentence Report ordered in this matter and filed as Exhibit No. 1 on the sentencing hearing [ 12 ] Shakir Abdi was born in Somalia and lived with his mother and father. When Abdi was 5 his father apparently died in a fatal car accident. His mother re-married when he was about 7 years old and he grew up viewing his stepfather as his father. The family, including two older brothers left Somalia as the civil strife and war escalated.

They took refuge in Ethiopia and about a year later when he was 10 years, he and his family arrived in Canada as refugees. Initially the family settled in Ottawa and then moved to Toronto. [ 13 ] Mr. Abdi grew up in the Kipling and Albion area of Toronto. He said he remembered his childhood fondly and that while the family experienced financial difficulties he and his siblings lacked for nothing. He reported the family was close knit, but that his relationship with his stepfather became strained as he became involved in the criminal justice system as a youth.

Both an older and younger sibling have been in conflict with the law as well. [ 14 ] In terms of his education, he was expelled from high school for truancy and disruptive behavior. He attended another high school where he completed a few grade 10 credits but his progress was interrupted by periods of incarceration. [ 15 ] In 2003, he became involved in the robbery of a convenience store as he was attempting to escape with his accomplices he was confronted by a police officer and shot. One bullet grazed him and a second struck him in the left elbow.

The wound to his elbow was serious in that he underwent surgery and a metal plate was implanted in his arm. He sustained some permanent damage preventing a full range of motion of his arm and he continues to experience pain with weather changes. Notwithstanding, Mr. Abdi, who considered himself fortunate to be alive, continued to be involved in further criminal activity, including being found in possession of a firearm and ammunition. At the time of the bank robberies, he was on probation as part of the sentence for the firearm offence. [ 16 ] His parents returned to Somalia to live a few years ago.

He has been in a longstanding relationship with his girlfriend, who has remained supportive of him. They have a 2 ½ year old daughter, although Mr. Abdi has only been out of custody for a few months of her life. [ 17 ] The offender had no documented employment history but claimed that when in Ft.

McMurray he had a job in a garage learning about auto-mechanics until his arrest in December, 2009. [ 18 ] It was noted in the pre-sentence report that the offender has been either in custody or bound by bail or probation order since 2003, yet he continued to re-offend which suggested he had not benefitted from any opportunities for rehabilitation. General Sentencing Principles: [ 19 ] The fundamental purpose of sentencing as set out in s.718 of the Criminal Code is to maintain a just, peaceful and safe society by the imposition of just sanctions having one or more of the following objectives:

a) to denounce unlawful conduct;

b) to deter the offender and other persons from committing crimes;

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

e) to provide reparations for harm done to victims or to the community;

f) to promote a sense of responsibility on offenders, and acknowledgement of the harm done to victims and to the community. [20] I must take into account the need for proportionality in consideration of the gravity of the offence and the degree of theoffender’s responsibility, as well as totality of sentence to ensure the combined sentence, where consecutive sentences are imposed, is notunduly harsh or long. [21] Crown counsel has provided the court with a number of cases in which a lengthy sentences of imprisonment were imposed foroffenders who committed bank robberies.

What emerges from these cases is that where the offences involve bank robberies, wherevulnerable victims have been exposed to threatened violence and death, the paramount sentencing considerations are deterrence,denunciation and protection of the public. [22] The Ontario Court of Appeal stated in R. v. Nembhard, [2010] O.J. No. 2420 at para. 5 such offences are very serious and callfor a substantial penitentiary term.

In that instance, on appeal, an offender with a dated record for several bank robberies, who pleadedguilty to a bank robbery, and attempted robbery of another, both with an imitation firearm, had his sentence reduced from 9 years to 7years. [23] In R. v. Slater, [2008] O.J. No. 4519 an offender who was found guilty after trial of robbing a bank received a sentence of 8 ½years. He robbed a bank of $3,000 by producing a note, which stated, “I have a gun in my pocket. I want $3,000. Don’t make anysudden moves.

You have 30 seconds to get it.” There is no evidence that the offender in fact had a gun, although the victim tellerreadily believed he had one. The offender had a lengthy criminal record that included 9 robberies, 7 of which were banks and he was adrug addict. The Court of Appeal considered the sentence imposed measured and there was no basis to interfere with it. (See R. v. Slater,2010 ONCA 376 , [2010] O.J. No. 2143 (O.C.A.) at para. 8) [24] In R. v. Gill, [2004] O.J.

No. 3368 (SCJ) the offender who robbed a bank of $2,500 without a weapon but with a production ofa note demanding cash received a sentence of 7 years in addition to 3 months pre-trial custody. The offender had a lengthy criminalrecord including 7 previous robberies and he was a heroin addict. One of the aggravating factors emphasized in that case, similar to thiscase, was that there was the threat of violence that left the teller “obviously emotionally traumatized”.

Henderson J. observed atparagraph 11 that in the absence of a guilty plea and a joint submission the case law supported a range of sentence between 8 to 10years. Position of Counsel [25] Crown counsel’s position is that the appropriate sentence should be one of six years imprisonment on each robbery countserved concurrently to each other and one year for each use of imitation firearm served consecutively to the other use of imitation firearmoffences and consecutive to the robbery sentences. The total period of incarceration suggested is nine years. [26] The Crown acknowledges that Mr.

Abdi’s arrest and detention on these matters pre-date the amendment to the CriminalCode dealing with pre-sentence custody and as a result he should benefit from the usual sentencing credit calculation pre-sentencecustody of two to one. Mr. Abdi has been in custody for approximately one year and seven months, although during more than twomonths of it he served sentences for his most recent convictions for failing to comply with court orders. Consequently, the Crown’ssubmission, concurred in by defence counsel, is that on a 2 to 1 basis for one year and five months pre-trial custody Mr.

Abdi shouldreceive credit of two years, ten months (34 months). [27] In addition, the Crown seeks a firearm/weapon prohibition order under s.109 for life and a DNA order, both of which areunopposed by defence. [28] Defence counsel’s position is that the offender should receive three years imprisonment for each robbery served concurrentlyand should the court impose one year sentences served consecutively for each use of imitation firearm, the total period of incarcerationwould be six years. Aggravating and Mitigating Factors: [29] Mr.

Abdi has a lengthy and continuous criminal record that involves a prior robbery with use of an imitation firearm andpossession of a prohibited or restricted firearm. He has been either in custody or on a bail or probation order almost continuously from2003. At the time of the bank robberies, he was on probation for the prior firearm offence. [30] Mr. Abdi’s offences exposed vulnerable victims to his threats of violence and death.

In three instances, he not only made athreat to kill them if they did not cooperate, but he displayed visually or by his actions that he had the means, a firearm, available toinflict serious harm or death. While the default finding was he used an imitation firearm in the commission of these robberies, it was noless an armed robbery in the minds of the victims. They feared for their lives. The traumatic impact on the tellers as revealed throughtheir Victim Impact Statements has been severe and continuing. [31] There was an element of planning to each robbery. He had an imitation firearm.

He produced a handwritten note setting outwhat he wanted. He had a young offender act as a lookout when he went into the banks to rob them. [32] Unfortunately, there are few, if any mitigating factors to consider in this case. [33] His past experience of being incarcerated and under community supervision, yet his continuing to engage in serious criminalactivity suggests he is not inclined to reform. On the contrary, it suggests he has chosen to be a career criminal. It should not gounmentioned that Mr. Abdi had been shot by the police in the aftermath of committing a convenience store robbery with an imitation

firearm in 2003. One would have thought that Mr. Abdi with such an experience as a youth he would have considered a different career path, rather he has chosen to engage in serious crimes of bank robbery over reform. [ 34 ] However, Mr. Abdi at 24 is still a young man, and I accept there is always the potential for rehabilitation should he choose to do so. He has a daughter and a long-standing relationship with his girlfriend, which may provide an impetus for him to attempt reform. Mr. Abdi was asked at the conclusion of sentencing submissions of counsel if he had anything he wished to say to the court.

He made reference to now having a daughter, which I took him to mean, he now understands if he is to have any relationship with her he has to change the course of his life. He wishes to pursue a trade and hopefully, he will take the opportunity to upgrade his education and participate in the rehabilitation programs offered. Sentence [ 35 ] Bank robberies and the use of an imitation firearm where innocent victims are threatened, believing that if they do not comply as directed they could be killed, are serious offences. Committing multiple serious offences such as these requires a substantial penitentiary term.

The sentence imposed must reflect the seriousness of the offences and speak to the principles of deterrence, denunciation and the protection of the public.

The totality of the sentence must reflect the overall gravity of the offences and where consecutive sentences are imposed, the cumulative sentence must not be so long or harsh as to crush any rehabilitative potential. [ 36 ] In my view, taking into account all of the factors delineated above, the total sentence should be one of seven and a half years, less pre-trial custody of one year and five months on a two to one basis for a credit of two years ten months, leaving a further period of incarceration to serve from this date forward of four years and eight months. [ 37 ] The sentence for each robbery on Counts 1, 3, 5, and 6 shall be four years (48 months) imprisonment to be served concurrently. [ 38 ] Count No. 2, use of an imitation firearm shall be one year (12 months) imprisonment to be served consecutively to the robbery sentences. [ 39 ] Count No. 4, use of an imitation firearm shall be one year (12 months) imprisonment to be served consecutively to Count No. 2 the robbery sentences. [ 40 ] Count No. 7, use of an imitation firearm shall be one year and six months (18 months) imprisonment to be served consecutively to all other sentences. [ 41 ] To repeat, the total period of incarceration is seven years and six months (90 months) less two years ten months (34 months) for a remaining period of incarceration to serve of four years and eight months (56 months). [ 42 ] In addition, there will be an order under s.109 (3) of the Criminal Code prohibiting Mr.

Abdi from the possession of any firearm and other weapons and items described therein for life. [ 43 ] Further, there will be an order pursuant to s.487.051 of the Criminal Code authorizing the taking of a number of samples of bodily substances for forensic DNA analysis. O’Marra J. Released: June 30, 2011 CITATION : R. v. Abdi, 2011 ONSC 4165 COURT FILE NO.: CR11/50000257-0000 DATE: 2009/06/30 ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – SHAKIR ABDI Accised REASONS FOR JUDGMENT O’Marra J. Released: June 30, 2011