R v Shahnawaz et al, 2017 MBCA 93

Citation: R v Shahnawaz et al, 2017 MBCA 93 Date: 20170922 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner Docket: AR16-30-08709 ) BETWEEN : ) ) HER MAJESTY THE QUEEN ) S. A. Inness and ) M. B. Cheater Respondent ) for the Appellant ) H. Shahnawaz - and - ) ) HAMED SHAHNAWAZ ) M. J. Dyck and ) M. A. J. Kruse (Accused) Appellant ) for the Appellant ) T. Ahmadzai - and - ) ) Docket: AR16-30-08710 ) C. R.

Savage BETWEEN : ) for the Respondent ) HER MAJESTY THE QUEEN ) ) Appeals heard and Respondent ) Decision pronounced: ) September 22, 2017 - and - ) ) TAMIM AHMADZAI ) ) (Accused) Appellant ) BURNETT JA (for the Court): [ 1 ] The two accused seek leave to appeal and, if granted, appeal sentence. At the conclusion of the hearing, leave was granted but the appeals were dismissed, with brief reasons to follow.

These are the reasons. [ 2 ] Each of the accused entered guilty pleas to two counts of intentionally discharging a firearm into or at a place, knowing or being reckless as to whether another person was present, contrary to

section 244.2(1) (

a) of the Criminal Code (the Code ). According to

section 244.2(3)(a)(i), the minimum sentence for a first offence is imprisonment for a term of five years. [ 3 ] The offences arose from two drive-by shootings at two residential addresses in Winnipeg.

The accused were arrested after a high-speed traffic pursuit by officers in marked police cruisers. [ 4 ] At the sentencing hearing, counsel for the accused proposed a total concurrent sentence of six to seven years’ custody, and the Crown sought a sentence of seven years on each count, to be served consecutively, with a reduction to six years after taking into account the principle of totality (i.e., a total consecutive sentence of 12 years in custody). [ 5 ] The sentencing judge sentenced each of the accused to two consecutive five-year sentences for a total of 10 years. [ 6 ] There is no issue regarding the applicable standard of review (see R v Houle , 2016 MBCA 121 at para 11 ).

As noted in R v Lacasse , 2015 SCC 64 at para 44 , if the sentencing judge erred, appellate intervention is only warranted where it appears from the judge’s decision that the error had an impact on the sentence. [ 7 ] Each of the accused raise the same five grounds of appeal, namely that:

1. the sentencing judge erred by determining the overall length of incarceration prior to determining whether the sentences should be consecutive or concurrent; 2. the sentencing judge erred by only considering the principles of denunciation and deterrence; 3. the sentencing judge erred in failing to treat each accused separately for sentencing purposes; 4. the sentencing judge erred in failing to consider stringent bail conditions as a mitigating factor in sentencing; and 5. the sentence imposed was harsh and excessive. [ 8 ] We are of the view that there is no merit to the second and third grounds of appeal. [ 9 ] This Court has, on numerous occasions, described the proper approach to sentencing for multiple offences.

See, for example, R v RJ , 2017 MBCA 13 at para 13 . Unfortunately, the sentencing judge failed to follow this approach. [ 10 ] The sentencing judge erred when he determined the overall length of incarceration before deciding whether the sentences should be consecutive or concurrent (see R v Taylor , 2010 MBCA 103 at para 11 ).

However, we accept the Crown’s submission that this error had no impact on the sentences since the sentencing judge made it abundantly clear that the sentences would have been the same even if he had imposed concurrent sentences. [ 11 ] The sentencing judge also erred when he said that “I do not agree that house arrest, while on bail, should have any bearing on the time to be served on a sentence.” It is well established that, in appropriate circumstances, conditions of judicial interim release having “significant custodial and penal attributes” can be a mitigating factor when determining sentence (see R v Irvine , 2008 MBCA 34 at para 30 ).

This may be particularly so in cases of lengthy duration. [ 12 ] Once again, we are of the view that this error had no impact on the sentences. We say this for two reasons. [ 13 ] First, in his reasons the sentencing judge indicated that he had considered the time spent on bail under house arrest, as well as the significant steps which the accused have taken to turn their lives around, and he clearly concluded that a reduction in sentence was not appropriate “under the circumstances.” While strict, there was no evidence that the bail terms were unduly harsh. [ 14 ] Second, the sentences imposed were not unfit.

The sentencing judge correctly observed that the charges resulted from two incidents of drive-by shootings in residential areas involving separate victims and that the accused’s actions were both planned and premeditated. Moreover, the seriousness of the offences was aggravated by the high-speed car chase with police that followed the second shooting. [ 15 ] Leave to appeal sentence was therefore granted but the appeals were dismissed. JA JA JA