R. v. Rana

2018 BCSC 680 R. v. Rana IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Rana, 2018 BCSC 680 Date: 20180427 Docket: 27231-2 Registry: Vancouver Regina v. Saeed Mobeen Rana Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.5 of the Criminal Code restricting the publication, broadcasting or transmission in any way of information that could identify a victim or witness referred to in this judgment by initials. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Mr. Justice Pearlman Oral Reasons for Sentencing Counsel for the Crown: D.Y.D. Sim J.C.A. Pellerin Counsel for the Defence: K. Pechet Place and Date of Hearing: Vancouver, B.C. April 6, 20, 2018 Place and Date of Judgment: Vancouver, B.C. April 27, 2018 Table of Contents INTRODUCTION. 3 CIRCUMSTANCES OF THE OFFENCES. 3 Circumstances of the offender. 4 impact ON the victim and THE community. 7 legal parameters. 8 principles of sentencing.. 8 CROWN POSITION ON SENTENCE. 9 defence position on sentence. 10 Aggravating factors. 10 Criminal Organization. 11 mitigating factors. 17 DISCUSSION AND ANALYSIS. 17 Sentencing - attempted murder 17 Sentencing - Count 2 - possession of a loaded restricted firearm contrary to s. 95(1) 24 Count 3 - occupying the vehicle knowing there was a firearm in the vehicle contrary to s. 94(1). 24 SENTENCE. 25 ANCILLARY ORDERS. 26 INTRODUCTION [1] On February 5, 2018, I convicted the accused, Sayed Mobeen Rana, of the attempted murder of Witness A with a restricted firearm, contrary to s. 239(1)(a) of the Criminal Code, R.S.C. 1985, c. C‑46 (the Code). I also convicted Mr. Rana of possession a loaded restricted firearm, contrary to s. 95(1) of the Code, and the unauthorized possession of a restricted firearm in a motor vehicle, contrary to s. 94(1) of the Code. I must now determine a fit sentence for Mr. Rana, taking into account the particular circumstances of this offender and these offences. CIRCUMSTANCES OF THE OFFENCES [2] Shortly before 2:00 p.m. on April 4, 2016, Witness A, then a 19-year-old university student, left his home in Surrey, British Columbia, driving his father's BMW sedan. He pulled over to the side of 86A Avenue, east of 140th Street, in a residential neighbourhood. [3] Witness A was the sole occupant of the BMW. He had no connection to Mr. Rana and his associates, or to any rival group of drug traffickers. [4] Mr. Rana, John Stanley Cullen, Witness C and Witness D were all associates in the drug trade. Mr. Rana was one of two "bosses" of a group of drug traffickers who operated dial‑a‑dope lines in the Lower Mainland. Mr. Cullen operated dial-a-dope lines in Langley and Chilliwack and obtained his drugs from Mr. Rana. Witness C was a close associate of Mr. Cullen, a drug dealer and an enforcer. Witness D was a drug user and low‑level dial‑a‑dope worker for Mr. Cullen. [5] Shortly after Witness A stopped his vehicle at the side of the road, Mr. Rana and his associates arrived in the area, where they intended to ambush a member or members of a rival drug group who they had lured to the area by the pretext of arranging a meeting to purchase drugs. [6] In the mistaken belief that Witness A was their intended victim, Mr. Rana and his associates drove their SUV parallel to the BMW. Mr. Cullen, the driver, was armed with a 10 mm handgun, as was Witness C. Mr. Rana possessed a .45 calibre Glock model 21 pistol. Both Witness C and Mr. Rana were seated in the rear of the SUV. Witness D, who occupied the front passenger seat, was unarmed. All four occupants of the SUV wore masks. [7] When the SUV drew alongside the BMW, Mr. Rana, Mr. Cullen and Witness C all fired their weapons at Witness A. [8] A witness who observed the shooting from his residence described the gunfire as two short bursts of rapid fire that lasted only for a matter of seconds. Mr. Rana fired at least five rounds at Witness A before his weapon malfunctioned, leaving the barrel, slide, other components and two unfired .45 caliber cartridges at the scene. [9] Following the shooting, Mr. Rana and his associates fled toward 140th Street. Witnesses C and D observed a white sedan turning onto 86A Avenue, at which point they realized they had shot up the wrong vehicle. [10] Mr. Rana and his group drove to an associate's residence where they removed spent shell casings from the SUV. [11] As a result of the shooting, Witness A suffered a single gunshot wound to his left thigh. The police found 16 bullet holes in the driver's side of the of the victims' vehicle, including seven in the driver's side door. In addition, the police located a bullet fragment in the headrest of the front passenger seat. Both the front driver and passenger's side windows were shattered. The police also located two bullet holes in the fences of the property adjacent to the location on 86A Avenue where Witness A had stopped his vehicle. I accept as accurate Witness C's testimony that the group fired approximately 20 rounds into the BMW. Circumstances of the offender [12] Mr. Rana was 23‑years‑old at the time of the offences, and is now 25‑years‑old. [13] Mr. Rana's parents immigrated to Canada from Pakistan, and settled in Surrey. Mr. Rana was the second of three children. In 1996, the accused's family relocated to Mississauga, Ontario where his father started his own sign making business. Mr. Rana attended school in Ontario until grade 5, when his father decided the family would return to Surrey. There, Mr. Rana's father and his two uncles purchased a large home that housed their extended family. Three years later, after Mr. Rana's father and uncles had a falling out over their business, the accused's family relocated to a basement suite in Surrey. [14] In the first few years following his return to Surrey, Mr. Rana performed well academically, and participated in school sports. [15] Mr. Rana's situation deteriorated during his high school years. As a result of a chromosome defect at birth, Mr. Rana's older brother has special needs and diminished mental capacity. At school, Mr. Rana fought with other students to protect his older brother from bullying. His parents' marriage broke down in 2009, when his mother could no longer endure the frequent beatings she suffered at the hands of her husband. Mr. Rana's father left the family home, appropriated all of the family savings, and never returned. The break‑up of his parents' marriage and the severance of all ties with his father confused and angered Mr. Rana. He fought with other students, was expelled from two high schools and failed to complete grade 12 at an alternate school. Mr. Rana's mother developed a seizure disorder that rendered her unemployable. Upon leaving school, Mr. Rana attempted to support his mother and family through full-time employment at McDonald's. Lacking the skills, qualifications or means to support himself, his mother and siblings through legitimate employment, Mr. Rana gravitated to the illegal drug trade. [16] By the spring of 2016, Mr. Rana and his associates were engaged in an escalating dispute with a rival group of drug dealers. In the early morning of March 29, 2016, persons unknown shot up the house in Surrey occupied by Mr. Rana's mother and siblings. On the afternoon of April 3, 2016, at the intersection of 88th Avenue and 132nd Street in Surrey, the occupant or occupants of a green SUV attempted to kill Mr. Rana. Three shots struck the driver's side window of the Nissan Altima motor vehicle that Mr. Rana was driving at the time. When Mr. Rana and his associates set out on April 4, 2016 to ambush one or more of their rivals, they did so believing that members of the rival group had shot up his mother's home on March 29 and targeted him on April 3, 2016. [17] Mr. Rana's criminal record includes convictions in 2011 as a youth for possession of a controlled substance for the purpose of trafficking and obstructing a peace officer. As an adult, Mr. Rana was convicted for uttering threats and mischief in 2012. He committed those offences in the course of an altercation with a girlfriend, and received a sentence of 12 months' probation and a five-year firearms prohibition. Mr. Rana's adult record also includes convictions on July 18, 2013 for assault and uttering threats. During a drunken quarrel, Mr. Rana slapped his girlfriend, pulled her hair, and detained her in a hotel room. For these offences, he received three months' jail, three years' probation and a mandatory 10-year firearms prohibition. [18] Mr. Rana's record also includes breaches of recognizance or undertakings in 2012 and 2013. [19] Mr. Rana was on probation at the time of the current offences. He breached a condition of the probation order that he not possess any weapons, including firearms. At the time of these offences, Mr. Rana was also bound by the 10-year mandatory firearms prohibition of July 18, 2013 and the five-year firearms prohibition issued on February 17, 2012. [20] On February 16, 2018, subsequent to his arrest for the current offences, Mr. Rana entered a guilty plea to a charge of making harassing communications, an offence he committed in August 2017 while in custody for this matter. I understand from defence counsel's representations that offence involved a telephone call to a former girlfriend. [21] Mr. Rana recently completed a program on life skills, goals and decision-making at the Surrey Pretrial Centre. [22] Mr. Rana maintains a close bond with his older brother, which has continued through his pretrial detention. The accused also enjoys the support of his mother and his sister, who is currently pursuing the third year of her studies toward a Bachelor of Arts degree in criminology. Both describe Mr. Rana as loyal and protective of his family. His aunt and two cousins have also provided letters describing Mr. Rana's close ties with his family. Upon his release from prison, Mr. Rana will have support from members of his immediate and extended family. [23] At the conclusion of the sentencing hearing, Mr. Rana apologized to Witness A and his family, expressed his remorse, and asserted his intention to put the criminal lifestyle behind him. Mr. Rana showed some insight into his offending behaviour. However, by attributing his conduct, in part, to the influence of others, he is still some way from accepting full responsibility for his actions. impact ON the victim and THE community [24] As the victim of a sudden, unprovoked and unexpected shooting at very close range, Witness A experienced a terrifying event. It was only through good fortune that he did not suffer a permanently disabling or fatal injury. In his victim impact statement, Witness A describes his emotional trauma following the incident, which disrupted his university studies. He continues to fear for his personal security. Witness A's mother has also provided a victim impact statement in which she describes the emotional distress she has suffered and her enduring fears for the safety of her family. [25] A reckless and unprovoked shooting incident in a residential neighbourhood also has a significant impact on the community by undermining citizens' sense of personal security and their belief that they live in a safe community. legal parameters [26] Under s. 239(1)(a) of the Code, the maximum penalty for attempted murder with a restricted firearm is imprisonment for life. The minimum sentence for a first offence is five years. [27] Under s. 95(2) of the Criminal Code, the maximum penalty for possession of a loaded prohibited or restricted firearm is 10 years. Although s. 95(2) provides for a mandatory minimum sentence of three years' imprisonment for first time offenders, the Supreme Court of Canada has declared that provision of no force and effect: R. v. Nur, 2015 SCC 15, paras. 119‑120. [28] Under s. 94(2) of the Criminal Code, the offence of unauthorized possession of a firearm in a motor vehicle carries a maximum sentence of 10 years' imprisonment. There is no minimum sentence for this offence. principles of sentencing [29] Section 718 of the Criminal Code provides: 718 The fundamental purpose of sentencing 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 by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (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; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [30] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1. [31] In addressing the submissions of the Crown and defence, and determining a fit sentence, I must also consider the principles set out in s. 718.2 of the Criminal Code, including the following: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, . . . (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, . . . shall be deemed to be aggravating circumstances; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; . . . CROWN POSITION ON SENTENCE [32] The Crown submits that a fit sentence for attempted murder in this case, before consideration of credit for time Mr. Rana has spent in pretrial custody for these offences, would be in the range of 15 to 18 years. For each of counts 2 and 3, the firearms offences, the Crown proposes six‑year sentences, to be served concurrently with each other, and concurrently with the sentence for attempted murder. [33] The Crown submits that Mr. Rana should receive credit at 1.5 to 1 for the time spent in pre‑sentence custody. Mr. Rana has remained in custody since his arrest on January 27, 2017, a period of 455 days. [34] One and one‑half credit would amount to 683 days. However, Mr. Rana was sentenced in Surrey Provincial Court on February 16, 2018 on the harassment matter to one day in jail and was credited for 90 days of pretrial custody. After deduction of the 90 days already credited to Mr. Rana, his one and one‑half credit for these offences amounts to 593 days, or one year, seven months and fifteen days. Accordingly, the Crown submits Mr. Rana should receive a credit of one year, seven months and fifteen days toward his sentence. [35] The Crown also seeks a mandatory firearms prohibition order under s. 109(3) of the Code; a DNA order under s. 487.051(a) of the Code; a mandatory victim fine surcharge of $200 for each offence pursuant to s. 737; and an order pursuant to s. 743.21 prohibiting Mr. Rana from communicating while imprisoned with the victim, or with John Stanley Cullen, Witness C or Witness D. defence position on sentence [36] The defence submits that Mr. Rana should receive concurrent sentences for all offences and that a sentence in the range of 8 to 10 years, less credit at 1.5 to 1 for time served in custody, would be appropriate in the circumstances of this case. Mr. Pechet takes no issue with the ancillary orders sought by the Crown, other than to submit that an order prohibiting Mr. Rana from communicating with Mr. Cullen may be impractical if they are both incarcerated in the same institution. Aggravating factors [37] I agree with the submission of the Crown that the location of the shooting, in a residential neighbourhood, in the early afternoon constituted a substantial risk to the public and is a significant aggravating factor. Mr. Rana and his associates acted in reckless disregard for the safety of innocent persons in the neighbourhood. The danger to the public is apparent not only from the injury suffered by Witness A, but also from the police evidence that an unrecovered bullet penetrated the fence of the residence behind the BMW, traversed the backyard and exited through the opposite fence into a laneway. [38] The large number of shots fired is also an aggravating factor. [39] The offence involved pre‑meditation. Mr. Rana enlisted Mr. Cullen and Witness C to assist him in finding and targeting members of the rival group. He provided Mr. Cullen and Witness C with handguns and instructed Witness C to purchase masks and gloves. Mr. Rana and his associates spent approximately three hours together before the shooting. They attempted, unsuccessfully, to locate members of the rival group in Surrey. When they failed to find a target, Mr. Cullen recruited Witness D to assist them in luring their rivals in Langley to an ambush. After Witness D explained that the Langley dealers knew that he worked for Mr. Cullen, Mr. Rana provided Witness C with telephone numbers for their Surrey rivals. Witness C then called the Surrey rivals and set up a meeting at 86A Avenue and 140th Street. [40] As discussed earlier in these reasons, the offence had a significant impact on the 19-year-old victim. The trauma caused by his exposure, at close range, to gunfire from three assailants continues to affect Witness A. He has also endured the entirely unfounded perception of classmates, neighbours and other members of the public, that as a victim of a shooting by drug traffickers, he must have some connection to criminal activity. [41] The fact that at the time when Mr. Rana committed this offence he was on probation and subject to two firearms and weapons prohibitions is a significant aggravating factor for the firearms offences. Criminal Organization [42] The Crown submits that another significant aggravating factor is evidence that Mr. Rana's offences were "committed for the benefit of, at the direction of or in association with a criminal organization" as provided in s. 718.2(a)(iv) of the Code. The Crown says that in targeting members of the rival group, Mr. Rana not only sought revenge for the attempt on his life. According to the Crown, Mr. Rana also wanted to protect and enforce the reputation of his group by instilling fear in the rival group. [43] The defence maintains Mr. Rana's motives were entirely personal. According to the defence, Mr. Rana committed the offences in an attempt to retaliate for the attack on his mother's home and the attempt on his own life. [44] Where the accused disputes an aggravating factor, the Crown has the burden of proving that aggravating factor beyond a reasonable doubt: R. v. Kwok, 2015 BCCA 34 at para. 63; R. v. Gardiner, [1982] 2 S.C.R. 368. [45] Under s. 467.1(1) a "criminal organization" is defined as follows: criminal organization means a group, however organized, that (a) is composed of three or more persons in or outside Canada; and (b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group. It does not include a group of persons that forms randomly for the immediate commission of a single offence. serious offence means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation. [46] By virtue of ss. 5(1), 5(3)(a) and Schedule I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, trafficking in heroin, cocaine, or methamphetamine is an indictable offence punishable by a maximum sentence of life imprisonment, and is therefore a "serious offence" within the meaning of s. 467.1(1) of the Code. [47] In Kwok, Bennett J.A., writing for the Court, held at para. 78 that in order to establish a criminal organization as defined by s. 467.1(1), the Crown must prove, beyond a reasonable doubt, that: 1. There is a group of three or more persons, however organized; 2. The group has, as one of its main purposes or activities, the facilitation or commission of one or more serious crimes; and 3. The facilitation or commission of the crime or crimes, if committed, would likely result in the direct or indirect receipt of a material benefit by the group or any member of the group. [48] As Bennett J.A. explained at para. 80: In R. v. Venneri, 2012 SCC 33, the Court adopted a purposive approach to the interpretation of "criminal organization". When considering the statutory definition of "criminal organization", rather than using a "check-list" definition of characteristics common to criminal entities, it is preferable to focus on the goal of the legislation. The goal of the legislation is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members (Venneri at paras. 38-40). [49] In Kwok the Court also stated the following principles: (a) courts must not limit the scope of s. 467.1(1) to the stereotypical model of organized crime, i.e., the highly sophisticated, hierarchical and monopolistic model (para. 81); (b) groups of individuals operating on an ad hoc basis with little or no organization do not fall within the definition (para. 82); (c) in order to engage the organized crime provisions of the Code, criminal groups must be "organized" with some form of structure and degree of continuity (para. 82); (d) "material benefit" specifically includes, but is not limited to financial benefit (para. 87); (e) in appropriate cases, the Crown may allege the aggravating factor of a criminal organization for sentencing purposes, without charging a criminal organization offence (at para. 88, citing R. v. Sipes, 2013 BCSC 383 and R. v. Payne, 2006 BCSC 1651(aff'd 2007 BCCA 541)). [50] At paras. 89-90, Bennett J.A. referred to R. v. Dritsas, 2013 MBQB 186. There, the trial judge found that Dritsas conspired with four others to traffic cocaine. The group arranged for the delivery of the cocaine and processed it over a four-month period. In the course of finding that Dritsas's group did not constitute a criminal organization, the trial judge noted that Dritsas was never charged with a "criminal organization" offence and did not have a known gang affiliation. In distinguishing a criminal organization from a conspiracy, the trial judge identified the following characteristics of a criminal organization: · developing specializations and dividing labour; · fostering trust and loyalty; · sharing customers, financial resources, and insider knowledge; · in some circumstances, developing a reputation for violence. [51] Although the Court found a loose hierarchic structure with a division of labour, it was not satisfied that Dritsas's "organization" satisfied sufficient attributes of a criminal organization to constitute an aggravating factor for the purpose of sentencing: Dritsas at para. 28. [52] In Kwok the Court also referred to R. v. Sharifi, [2011] O.J. No. 3985 (S.C.J.). There, the accused was charged with 14 counts related to cocaine trafficking and weapons offences, including two counts for criminal organization offences. The Court convicted Sharifi on the drugs and weapons offences but acquitted on the counts related to the criminal organization offences. In finding the evidence failed to establish the existence of a criminal organization, Maranger J. found a group of individuals were involved in trying to obtain cocaine for three months. It was not possible to say how they were going to benefit each other and there was no structure to the group. The group had no name and there was no evidence they considered themselves to be members of a group or organization. There was no evidence of any records of their activities. The Court could not say whether the accused intended to benefit anyone in the group or stood only to benefit himself. [53] The evidence of Witnesses C and D establishes that the accused, Mr. Cullen and Witnesses C and D were all members of a group involved in trafficking heroin, cocaine, and methamphetamines. Witnesses C and D were Vetrovic witnesses whose evidence I approach with caution. However, much of their testimony was consistent. Witness D understood Mr. Rana was the "boss" because he supplied drugs to Mr. Cullen, who owned and operated a dial-a-dope line. Witness D, who worked as a driver for Mr. Cullen, described Witness C as "Cullen's right-hand man". [54] Witness C also understood Mr. Rana was a boss and that he supplied drugs to Mr. Cullen. Referring to Mr. Rana and his associate Johal, Witness C testified that "we worked their phones and sold their drugs". Witness C testified that he initially dealt in drugs on his own account, later worked for Rana and Johal, and started his own drug line before he worked for Mr. Cullen in Chilliwack, where Mr. Cullen owned his own drug line. Witness C regarded himself as a friend and associate of both Mr. Rana and Mr. Cullen, and was a manager of Mr. Cullen's dial-a-dope line. [55] Relationships among the group were fluid. Acting on their own initiative, Witness C and Mr. Cullen committed assaults and other acts of intimidation in pursuit of their own criminal activities. Witness C acting independently of the group, engaged in thefts and break-ins. The day before these offences, Witness C, who planned to operate his own drug line, met with Mr. Rana to settle his debt and to purchase drugs for his own enterprise. [56] The Crown adduced no evidence of record-keeping or a group name. [57] On the whole of the evidence, I find that the Crown has established, beyond a reasonable doubt, the existence of a group led by Mr. Rana and Mr. Johal that trafficked in heroin, cocaine and methamphetamines through various dial-a-dope lines. The group had a hierarchical structure, with Rana and Johal at the apex. Mr. Cullen, as the owner of a drug line supplied by Mr. Rana, was subordinate to the accused. There was some division of labour among operators of dial-a-dope lines, managers, drivers, and other low-level distributors. [58] Witness C testified he went to work for Rana and Johal in the summer of 2014. Mr. Rana's organization continued to function at the time of these offences. [59] I find that the Crown has proven that Mr. Rana led a drug trafficking group with sufficient structure and continuity to constitute a criminal organization. [60] However, I am left with a reasonable doubt about whether Mr. Rana committed the offences for the benefit of, at the direction of or in association with the criminal organization. When Mr. Rana enlisted him, Witness C understood the accused wanted revenge for the attempt on his life of April 3, 2016. Mr. Rana also wanted to retaliate for the attack on his mother's home. Mr. Rana believed that members of a rival group were responsible for both incidents. He was prepared to target any member of the rival group he could find. Whether Mr. Rana was pursuing an entirely personal vendetta, or also sought to benefit the organization is unclear. [61] Here, the evidence is as consistent with Mr. Rana recruiting Mr. Cullen and Witness C as persons he knew would have no qualms about assisting him to execute a violent and personal reprisal for the attack on his mother's home and the attempt on his own life, as it is with the accused enlisting them in order to commit an offence in association with the criminal organization. The Crown has failed to establish, beyond a reasonable doubt, that Mr. Rana committed the offences for the benefit of, at the direction of, or in association with the criminal organization. Accordingly, in the circumstances of this case, s. 718.2(a)(iv) does not apply as an aggravating factor. [62] I pause here to note that both Mr. Cullen and Witness C have been sentenced for their participation in the shooting of Witness A. In neither case did the Crown contend those accused participated in the offence for the benefit of, at the direction of, or in association with a criminal organization. Later in these reasons I will return to the offences charged and sentences imposed on Mr. Cullen and Witness C. [63] Although I have found that s. 718.2(a)(iv) does not apply here, I would reiterate that the reckless attack on Witness A in a residential neighbourhood, the multiple rounds fired, and the fact that Mr. Rana committed these offences while on probation and in breach of two orders prohibiting him from possessing firearms are all significant aggravating factors. mitigating factors [64] Mr. Rana's relatively young age of 23 at the time of the offences is a mitigating factor. [65] The support Mr. Rana enjoys from his family and his expression of remorse, (although falling short of a full acceptance of responsibility for his offences), are also mitigating factors suggesting that he has some potential for rehabilitation. DISCUSSION AND ANALYSIS Sentencing - attempted murder [66] In the circumstances of this case, the principal sentencing objectives are denunciation, specific and general deterrence. Rehabilitation of the offender and the promotion of a sense of responsibility in the offender are secondary but important objectives in this case. [67] In support of its submission that the court should impose a sentence of 15 to 18 years for Mr. Rana's offence of attempted murder by using a firearm, the Crown referred to R. v. Battersby, 2016 BCSC 2186, R. v. Kipp, 2010 BCSC 584, R. v. Thiara, 2008 BCSC 1414, R. v. Siu, [1998] B.C.J. No. 2627 [CA], R. v. Chevers, 2011 ONCA 569 and R. v. LeBlanc, 2011 NSCA 60. [68] In Battersby at para. 48, Mr. Justice Butler described the sentencing range for attempted murder: . . . It is fair to say that the range is from a low of 10 years to a high of 18 years, except where a life sentence is given. The sentences at the higher end of the range tend to be given to offenders with lengthy records, where the circumstances of the offence are particularly egregious or where there is more than one count of attempted murder. The sentences at the lower end of the range are ordered where there is some prospect for rehabilitation and the aggravating circumstances are not overwhelming. Sentences of life imprisonment are imposed where the offender has a lengthy criminal record and the aggravating circumstances are egregious, such as where the attempted murder occurs in the course of a robbery or is particularly violent. [69] In Battersby, the 63-year-old offender pleaded guilty to three counts of attempted murder with a restricted firearm. Mr. Battersby inflicted life-changing injuries on his victim when he shot him at close range. The offender later exchanged gunfire with two police officers. In accepting a joint submission for an 18 year sentence on the three attempted murder charges, the Court described the circumstances of the offence as particularly egregious. [70] Recently, in R. v. May, 2017 BCSC 1971 at para. 49, Madam Justice Church observed that sentences for attempted murder can vary between five years and fifteen years, with the maximum sentence of life imprisonment reserved for cases involving offenders with long histories of violence and particularly brutal or callous offences. As the court observed at para. 50, in cases involving attempted murder by use of a firearm, denunciation and deterrence are paramount considerations. Accordingly, sentences for attempted murder using a firearm typically fall toward the upper end of the range. [71] In May, the offender, following in quarrel with his former girlfriend and her new partner, Jones, returned to their residence with a sawed off .22 caliber rifle. A melee followed during which the rifle discharged. The bullet struck Jones in the jaw. The Court concluded that in these circumstances, the sentencing range for attempted murder is 7 to 12 years' imprisonment, and imposed a sentence of 9 1/2 years. [72] In Kipp, the 20-year-old offender and Mr. White were involved in trafficking crack cocaine. After White stole cocaine from Mr. Kipp's associate, Mr. Kipp obtained a semi‑automatic rifle, approached White outside a crack house, and fired 13 shots, wounding both Mr. White and one of his associates. Kipp bears some similarities to the case at bar. Multiple shots were fired; the shooting occurred in a residential area; the offence involved a degree of premeditation; and Mr. Kipp was in breach of a bail condition prohibiting him from possessing any weapons. [73] Mr. Justice Joyce considered a significant sentence was required to denounce Mr. Kipp's conduct and to deter the use of firearms. Noting that the offender was a young man who had expressed his desire to free himself from the drug underworld, the Court also observed that the sentence should not be so great as to stifle any true desire Kipp had for rehabilitation. In these circumstances, the Court imposed a sentence of 10 years for the offence of attempted murder. [74] In Thiara, the 19-year-old offender lured the complainant to a crack house where he shot him once in the abdomen and at least one more time when the claimant attempted to flee. After the complainant collapsed, Thiara pointed the gun at his head, but refrained from shooting when the complainant stated "don't shoot me again, I am dead already". The complainant suffered severe injuries to his kidney, small intestine and hip. The offender had no prior criminal record. The Court imposed a10 year sentence for attempted murder and carrying a concealed firearm. The Court accepted that denunciation was the principal sentencing objective and observed that, but for the accused's supportive family, his efforts at rehabilitation and his age, it would have imposed a 12 year jail sentence. [75] In Siu, the Court of Appeal upheld a sentence of 15 years for attempted murder where the 38-year-old offender, armed with a sawed off shotgun, fired one round, wounding his victim. The offence occurred while Siu was attempting to collect on a drug debt. The Court took into account the offender's extensive and escalating criminal record, which included a conviction and three year sentence for robbery using a firearm, and his lack of remorse. [76] In Chevers, the Ontario Court of Appeal upheld a 15 year sentence imposed on a 24-year-old offender for attempted murder. In finding the sentence appropriate, the Court took into account the following factors: · premeditation · the use of a prohibited handgun, · firing of two shots - one directly at the victim's head, · Mr. Chevers' prior criminal record - including possession of a prohibited/restricted firearm with ammunition, and · the impact on the victim and on the community. [77] In LeBlanc, where the accused pleaded guilty to attempted murder, the Nova Scotia Court of Appeal upheld a sentence of 16 years' imprisonment. The offender lured his victim to a meeting and then shot him. The complainant suffered serious injuries to his intestine, colon and sacrum. The shooting occurred in a residential area. The Court found that the offence was premeditated. The fact the accused fired six .45 caliber rounds was also an aggravating factor, where there was a risk of injury to nearby apartment dwellers. The offender had a more extensive criminal record than Mr. Rana. [78] For its part, in addition to Kipp and May, the defence referred to R. v. Cuthbert, 2007 BCCA 585, R. v. Fletcher, 2013 BCSC 2159 and R. v. Chand, 2011 BCPC 0230. [79] In Cuthbert, the Court of Appeal upheld an effective global sentence of 12 years' imprisonment where the jury convicted the offender of attempted murder of his former spouse, discharging a firearm at her new partner, and possession of a sawed off shotgun. Mr. Cuthbert had no criminal record and enjoyed substantial support from family and the community. [80] At para. 54, the Court of Appeal held that a sentence of 7 to 12 years would not have been unfit for the attempted murder offence. In upholding the 12 year sentence for attempted murder, Chief Justice Finch, for the Court, noted that Cuthbert had engaged in a pre‑meditated and deliberate course of action by which he intended to cause the death of his former spouse. The Court also treated domestic violence as a significant aggravating factor. [81] Relying on Fletcher, Mr. Pechet argued that in the circumstances of this case, a sentence of no more than eight or nine years may be all that is necessary to achieve the objectives of denunciation, deterrence, and the encouragement of a sense of responsibility without stifling Mr. Rana's prospects for rehabilitation. In Fletcher, the 24-year-old offender, and his co‑accused, Ms. Ferber, were ejected from a nightclub on Douglas Street in Victoria. Following an altercation outside the club with security staff, the two retrieved Ms. Ferber's car and drove past the club. Mr. Fletcher fired 14 shots at the front of the club, where a number of people were milling about. One bullet struck a doorman, wounding him in the thigh. [82] Fletcher pleaded guilty to attempted murder, aggravated assault, discharge of a firearm and possession of a firearm without a license. Aggravating factors included the number of shots, the injury to the doorman, and the risk of injury or death to others in the immediate vicinity. [83] On a joint submission, the Court imposed a sentence of eight years for attempted murder with no credit for pretrial custody. An important mitigating factor, which distinguishes Fletcher from this case, was the early guilty plea. Additional aggravating factors in Mr. Rana's case include his recruitment and arming of two shooters. [84] In Chand, the 20-year-old offender, a low-level drug dealer, pleaded guilty to the attempted murder with a firearm of another drug dealer. As in the case at bar, the offence occurred in a residential area. The offence was impulsive, rather than planned. No one was injured. In imposing a 10 year sentence, the Court took into account the offender's young age and his guilty plea, which the Court characterized as a significant act of contrition by which the accused had spared his victim the trauma of having to testify at trial. [85] The authorities cited by counsel which I find most helpful in determining a fit sentence in the circumstances of this case are Kipp, Thiara, Siu, Chevers, LeBlanc and Chand. The sentences for attempted murder with a firearm imposed in those cases ranged from 10 years to 16 years, before credit for time served. [86] The sentence I impose should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Mr. Cullen pleaded guilty to the attempted murder of Witness A. He was sentenced on November 9, 2017 for that offence, and for unrelated offences of possession of a loaded prohibited or restricted firearm and possession of cocaine, heroin, methamphetamine and fentanyl for the purpose of trafficking. [87] By joint submission, Mr. Cullen received a sentence of 10 years for attempted murder. He received sentences of 3.5 years and 2.5 years respectively on the unrelated counts, to be served concurrently to each other and the sentence for attempted murder, less time served. At the time of sentencing, Mr. Cullen was 22 years old. He had no prior criminal record. The sentencing judge took into account his young age, his First Nations ancestry, the absence of any prior criminal record and the exceptional support he enjoyed from his family and in the community. [88] On October 10, 2016, Witness C entered into a plea and limited immunity agreement by which he entered guilty pleas to one count of discharging a firearm with intent to wound contrary to s. 244(1) of the Code and one count of using a firearm during the commission of an aggravated assault, contrary to s. 85 of the Code. In exchange for his agreeing to testify in these matters, he received immunity from prosecution for both the attempted murder of Witness A and the unrelated charges of possession of a loaded handgun and cocaine at the time of his arrest on April 6, 2016. Witness C was 21 years old at the time of his sentencing on December 15, 2016. By joint submission, he received concurrent sentences of five years, less time served, for the offences related to his participation in the shooting of Witness A. [89] The Court must take into account the principle of parity, particularly where the offence involves a joint venture. However, sufficiently different circumstances of the co‑accused may warrant significantly different sentences: R. v. Christie, 2004 ABCA 287 at para. 40; R. v. Violette, 2009 BCSC 1557 at para. 131, affirmed 2013 BCCA 31. [90] As the Court explained in R. v. Uniat, 2015 ONCA 197 at para. 6: 6. The principle of parity does not require equivalent or near equivalent sentences to be imposed on all participants in a joint venture, irrespective of their role in the offence, their backgrounds and circumstances, and the manner in which their participation in the offences is resolved by the courts. . . [91] Ultimately, sentencing is an individualized exercise, tailored to the particular circumstances of the offence and the offence. [92] Here, although all three offenders were young men in their early 20s, the early guilty pleas of Mr. Cullen and Witness C limit the application of the parity principle. Further, Mr. Cullen, unlike Mr. Rana, had no prior criminal record. Mr. Rana played the leading role in planning the offence by recruiting and arming Mr. Cullen and Witness C. However, I also bear in mind that Mr. Cullen contributed to this scheme by enlisting Witness D, who he hoped might assist the group in targeting a victim in Langley. For his part, Witness C set up a meeting with the Surrey rivals and stole licence plates in order to help his co‑accused evade detection. Finally, all three offenders joined in firing a fusillade of approximately 20 rounds at Witness A. [93] In my view, a significant sentence is required to denounce Mr. Rana's conduct and to impress upon him and others that recourse to the use of firearms, particularly in residential areas or other public places, will attract a severe penalty. [94] As I have previously noted, the aggravating factors in this case include the large number of rounds fired, the location of the offence in a residential neighbourhood, the degree of planning, including Mr. Rana's recruitment and arming of two gunmen, and the traumatic impact of the offence on the victim. [95] I also take into account that Mr. Rana is a relatively young man who has expressed remorse and a desire to put the criminal lifestyle behind him. He has the support of his family and the potential for rehabilitation. [96] Taking into account all of the circumstances, I conclude that a fit sentence for the offence of attempted murder is 12 years, before credit is given for the time Mr. Rana has spent in custody. Sentencing - Count 2 - possession of a loaded restricted firearm contrary to s. 95(1) Count 3 - occupying the vehicle knowing there was a firearm in the vehicle contrary to s. 94(1). [97] As I have previously noted, the maximum sentence for each of these offences is 10 years imprisonment. The authorities cited by the Crown, including R. v. Nur, 2015 SCC 15; R. v. Holt, 2015 BCCA 302; and R. v. Sanghera, 2012 BCSC 901 suggest a range from 30 months to seven years imprisonment for these offences. [98] For firearms offences, denunciation, deterrence and protection of the public are primary objectives, while rehabilitation is a secondary consideration: R. v. Zhu, 2013 BCCA 416 at para. 6; Sanghera at paras. 30-33. [99] Courts of this province have repeatedly commented on the serious impact of firearms offences on the community, the proliferation in the use of handguns in many communities, and the risks to the public of the illegal possession and use of unlawful firearms. See for example Zhu at para. 21 and R. v. Radjenovic, 2011 BCSC 1225 at paras. 101 and 102. [100] In Nur, in the course of determining the mandatory minimums under s. 95(2) were of no force and effect, Chief Justice McLachlan explained that s. 95(1) captures a range of offences extending from regulatory breaches to truly criminal conduct (at paras. 82, 83). [101] Here, as the Crown submits, Mr. Rana possessed the .45 caliber Glock model 21 handgun and ammunition as a tool of his criminal activities and for the purpose of killing a member or members of the rival group. [102] I also bear in mind that Mr. Rana possessed a restricted weapon and ammunition in disregard of two firearms prohibition orders and the terms of his probation order. [103] Taking into account all of these factors, and the mitigating factors I have previously discussed with respect count one, I conclude that a fit sentence for each of counts two and three is a term of four years and six months' imprisonment. [104] The acts constituting the offences charged in counts two and three formed part of a single endeavour which also included the attempted murder of Witness A. Accordingly, the sentences for count two and three will be concurrent to each other and concurrent to count one. SENTENCE [105] Mr. Rana would you please stand. 1. On count one, the charge of attempted murder, I sentence you to 12 years in prison; 2. On each of counts two and three, I sentence you to four years and six months in prison and those sentences are concurrent to each other and concurrent to the sentence on count one; 3. You will receive credit for time served at the ratio of 1.5 to 1. You are entitled to credit for 593 days, or one year, seven months and fifteen days. The twelve year jail sentence is reduced by the amount. Accordingly, you will serve an actual sentence of 3,787 days or ten years, four months and seventeen days. [106] Mr. Rana you may be seated. ANCILLARY ORDERS [107] The ancillary orders are as follows. [108] There will be a mandatory firearms prohibition order under s. 109(3) of the Code prohibiting Mr. Rana from possessing any firearm, crossbow, restricted weapon, ammunition or explosive substance for life. [109] Because attempted murder is a primary designated offence under s. 487.04 of the Code, I am also making a DNA order under s. 487.051 authorizing the taking of the number of samples of bodily substances from Mr. Rana reasonably required for the purposes of forensic DNA analysis. [110] Pursuant to s. 737 of the Code, I also make an order requiring Mr. Rana to pay the victim fine surcharge of $200 for each offence. [111] I also make a non-communication order pursuant to s. 743.21(1) of the Code. Mr. Rana, while in prison, you are prohibited from communicating, directly or indirectly, with Witness A, Witness C, or Witness D. [112] I decline to make the non-communication order sought by the Crown in respect of John Stanley Cullen. The Crown has not persuaded me that it is necessary. Further, if Mr. Rana and Mr. Cullen are imprisoned in the same facility, some communication between them may be unavoidable. [113] That concludes my reasons for sentencing. "PEARLMAN J."