CITATION: R. v. Brown, 2010 ONCA 745

DATE: 20101104

DOCKET: C50230

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Simmons and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Duane Gregory Brown

Respondent

Shelley Maria Hallett, for the appellant

Daniel C. Santoro and Crystal Tomusiak, for the respondent

Heard: October 26, 2010

On appeal from the sentence imposed by Justice Hugh K. Atwood of the Ontario Court of Justice on February 26, 2009.

ENDORSEMENT

[1]               The Crown requests leave to appeal the sentences imposed on the respondent for two firearms offences.

[2]               On February 26, 2009, the respondent pleaded guilty to possession of a loaded restricted firearm and breach of a lifetime firearms prohibition order. After determining that a global sentence of about 8 years’ imprisonment would have been appropriate had the respondent gone to trial, Atwood J. sentenced the respondent to five years, six months’ imprisonment on the possession of a restricted firearm charge and to one year concurrent on the charge of possession of a firearm contrary to a prohibition order.

[3]               In arriving at these sentences, the sentencing judge took account of the respondent’s guilty plea, his co-operation with the police on arrest and the fact that there was no indication the respondent was involved in other criminal activity when he was arrested. In the light of these factors, the sentencing judge concluded a six-year global sentence would be appropriate and gave the respondent six months’ credit on a two for one basis for pre-sentence custody.

[4]               We accept the Crown’s submission that the sentences imposed were demonstrably unfit and outside the range of what was appropriate for these offences and this offender.

[5]               Because the respondent had previously been convicted of possession of a firearm, five years’ imprisonment was the minimum sentence that could be imposed for the possession of a firearm offence. Moreover, given that this was the third occasion on which the respondent had been convicted of possession of a firearm and breach of a firearms prohibition, a global sentence of five years and six months’ imprisonment in addition to pre-sentence custody was simply not adequate to reflect the seriousness of these offences and the respondent’s incorrigibility as an offender.

[6]               The offences arose from the respondent’s arrest on December 2, 2008 on an immigration warrant. He was arrested at gunpoint as he was entering a car. Upon his arrest, he revealed to the police that he had a .45 calibre semi-automatic Sig Sauer handgun secreted down the front of his pants. One .45 calibre round was in the chamber of the handgun and eight additional rounds were in the magazine. Police also found two rounds of .45 calibre ammunition wrapped in a red bandana in the respondent’s rear pants pocket.

[7]               While it may be true that the respondent was co-operative with the police on arrest and that there was no indication that he was involved in other criminal activity at the time, the more significant feature of these offences is that the respondent was moving about in the community with a fully loaded lethal weapon at the ready – and doing so despite court orders prohibiting him from possessing a firearm.

[8]               At the time of his arrest, the respondent was bound by two lifetime firearms prohibition orders. These orders arose from two prior sets of convictions for firearms offences. The persistent nature of the respondent’s serious misconduct and his presence in Canada despite a deportation order demonstrate his incorrigibility as an offender.

[9]               On May 12, 2003, the respondent was convicted of possession of a prohibited weapon with ammunition and breach of a five-year weapons prohibition. These offences were committed on August 18, 2002. Police stopped a motor vehicle in which the respondent was a passenger and noticed the wooden butt-end of a sawed off shotgun in the car. The shotgun was not loaded but police found two shotgun shells in the respondent’s pockets. The respondent was bound, at the time, by a five-year firearms prohibition imposed on November 19, 1997, when the respondent was convicted of two counts of robbery. As the result of these convictions, a lifetime firearms prohibition was imposed.

[10]          Less than 12 months later, on April 17, 2004, police found the respondent in possession of a fully loaded Glock 9 mm. semi-automatic firearm. As a result of this discovery, the respondent was convicted, on January 14, 2005, of possession of a restricted firearm with ammunition, careless use of a firearm, breach of a lifetime firearms prohibition order and failing to comply with a probation order and a second lifetime firearms prohibition order was imposed.

[11]          As we have said, the respondent was in Canada illegally on the date of his arrest. He came to Canada from Jamaica as a child but was deported back to Jamaica on April 11, 2006 following his 2005 convictions. Despite the deportation order, the respondent returned to Canada illegally, and, in a repeat of his past serious misconduct, he again carried a loaded lethal weapon in the face of a prohibition order.

[12]          We note as well that the respondent’s criminal record consists of 34 convictions.

[13]          The circumstances of this offence and this offender called out for an exemplary sentence to achieve the sentencing goals of denunciation and deterrence. Particularly in the light of Parliament’s decision to establish a mandatory minimum sentence of five years’ imprisonment for a second or subsequent conviction for possessing a loaded restricted firearm, the global sentence imposed of five years and six months’ imprisonment in addition to pre-sentence custody was not adequate to meet those objectives.

[14]          The respondent brought a fresh evidence application, but fresh evidence indicating that the respondent may now be pursuing his education and making efforts at rehabilitation in the penitentiary does not alter our conclusion. Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.

[15]          Leave to appeal sentence is granted, the sentences of imprisonment imposed by the sentencing judge are set aside and the following sentences of imprisonment are substituted:

(i)        possession of a loaded restricted firearm: 7 years, six months’ imprisonment less six months credit for pre-sentence custody for a total of 7 years imprisonment;

(ii)      breach of a firearms prohibition: 1 year imprisonment, to be served consecutively to the sentence for possession of a loaded restricted firearm.

                                                Signed:           “D. O’Connor A.C.J.O.”

                                                                        “Janet Simmons J.A.”

                                                                        “R. A. Blair J.A.”