The two accused in this case were members of a street gang called the ‘Young Buck Killas', also known as ‘the YBK’. The principal aims and objectives of this gang included committing robberies and producing and trafficking drugs, principally crack cocaine. The YBK was founded in Toronto but had extended its activities other cities in Ontario, Saskatchewan, Alberta and British Columbia.
The modus operandi of the organized criminal group was to rent houses in these cities from which persons lower in the criminal hierarchy would sell crack cocaine. Members of the group transported drugs and sometimes firearms between these cities on inter-city busses.
Messers Hersi and Mahadale pleaded not guilty to the charges against them. Mr Hersi was found guilty of all charges against him. Mr Mahadale was convicted of the s 99 offence and the s 467.12 offence that related to it, but was acquitted of the s 92 offence and the s 467.12 that related to that charge.
Mr Mohammed Hersi was one of the leaders of the YBK. Justice Clark of the Ontario Superior Court of Justice accepted a description of Mr Hersi as being ‘the CEO of the YBK’.
Mr Hersi was born in Somalia and had come to Canada with his mother and siblings at the age of two. At the time of sentencing, he had become a Canadian citizen. At the time of the commission of the offences concerned in this case, he was 22.
Justice Clark noted that other than some employment as a community worker between 2005 and 2006, it appeared that he had never held lawful employment.
Mr Hersi had an extensive criminal record both as a youth and as an adult. As a youth, he had been found guilty of two count of robbery, two counts of using an imitation firearm during the commission of an indictable offence, one count of wearing a disguise with intent, one count of possession of a weapon, one count of obstructing a police officer, five counts of failure to comply with a recognizance and one count of possession of a schedule I substance.
As an adult he had been convicted of one count of possession of a prohibited or restricted firearm with ammunition, one count of possession of a firearm knowing that its possession was unauthorized, one count of possession of a firearm while prohibited, one count of possession of a schedule I, one count of possession of property obtained by crime over $5,000, one count of assault causing bodily harm and one count of failure to comply with a probation order. Some of these offences were committed after the offences in this case, but prior to his arrest, charge and conviction in relation to the offences in this case.
Mr Guled Mahadale was another highly placed member of the FBK. Justice Clark accepted that during the period of the indictment concerned in this case, he had become somewhat less involved in the gang’s activities, but his Honour found that this was not motivated by a desire to withdraw from a life of crime, but rather a decision that was forced on him because of a number of health issues.
Mr Mahadale was also born in Somalia. His family had spent some time living in Saudi Arabia before they migrated to Canada. He was still very young when his family migrated. He had not completed high school in Canada, but while being detained awaiting trial and sentence he had undertaken a number of courses. At the time of sentencing, he would soon be eligible to sit an exam to obtain a certificate of high school equivalence.
Mr Mahadale had no employment history. Justice Clark accepted that his ability to work was affected by health issues but rejected the suggestion that his health issues were so significant as to preclude him from all work.
Mr Mahadale also had an extensive criminal history. As a youth he had been convicted of three counts of robbery, one count of carrying a concealed weapon, two counts of using an imitation firearm during the commission of an offence, one count of possession of a firearm contrary to a prohibition order, one count of obstructing a peace officer, four counts of failure to comply with a recognizance and two counts of failure to comply with a disposition.
As an adult he had also been convicted of one count of unauthorized possession of a firearm and one count of possession of a firearm knowing that is possession was unauthorized.
Weapons trafficking
Possession of firearm knowing its possession is unauthorized
Conspiracy
Mr Hersi was charged with, and convicted of, having conspired to traffic in a controlled substance. This conviction related to an ongoing agreement to traffic crack cocaine across Canada.
In sentencing Mr Hersi, Justice Clark noted that while Mr Hersi was only being sentenced in relation to one conspiracy to traffic in a controlled substance, two such conspiracies had actually been proven at trial. The second was a conspiracy to smuggle marijuana to an associate in prison.
Trafficking in substance
Commission of offence for criminal organization
Mr Hersi was charged with, and convicted of, four counts of commission of an indictable offence for the benefit of, at the direction of, or in association with, a criminal organization. These counts related to each of the four other offences of which he was convicted.
In sentencing Mr Hersi, Justice Clark noted that while he was still relatively youthful, but was nevertheless ‘a serious recidivist who, it seems, is … undeterred by the hefty penal sanctions imposed on him to date for those of his criminal endeavours that have come to the attention of the authorities … determined to persist in his criminal lifestyle (as reflected by convictions postdating the offences herein) … unwilling to make any effort to improve his education or acquire any marketable skills … [and] not interested in pursuing any lawful vocation’. As such, Justice Clark took a ‘very gloomy view’ of Mr Hersi’s prospects of rehabilitation.
Justice Clark further noted the need for the sentence to reflect general and specific deterrence.
In relation to mitigating factors, Justice Clark found there to be little else in Mr Hersi’s favour besides his relative youth. It was noted that he had some family support, but one of his brothers was also involved in criminal activity and his mother had helped to assist him to transfer a large sum of money despite knowing it had been obtained through criminal activities. As such little weight was given to his family support.
Regarding Mr Hersi’s firearm offence, Justice Clark found it to be an aggravating factor that at the time of the offences, he was bound by numerous orders prohibiting him from possessing firearms. In relation to the drug offences, it was found to be an aggravating factor that he had utilized numerous persons below the age of 18 in his criminal activities and that, at the same time as he was involved in the conspiracy to traffic crack cocaine across the country, he had also conspired to smuggle marijuana to a person in prison.
Justice Clark also considered the fact that the drug and firearms offences had been committed in association with, and for the benefit of, a criminal organization to be an aggravating factor.
Justice Clark sentenced Mr Hersi to:
(1) 5 years’ imprisonment for the offence contrary to s 99 of the Criminal Code;
(2) 5 years’ imprisonment for the offence contrary to s 92 of the Criminal Code, to run concurrently to (1);
(3) 3 years’ imprisonment for the offence contrary to s 467.12 of the Criminal Code that related to the offence in s 99 of the Criminal Code, to run consecutively to (1) and (2);
(4) 3 years’ imprisonment for the offence contrary to s 467.12 of the Criminal Code that related to the offence in s 92 of the Criminal Code, to run consecutively to (1) and (2) but concurrently to (3);
(5) 3 years’ imprisonment for the offence contrary to s 465 of the Criminal Code, to run consecutively to (1)-(4);
(6) 3 years’ imprisonment for the offence contrary to s 5 of the Controlled Drugs and Substances Act, to run consecutively to (1)-(4) but concurrently to (5);
(7) 2 years’ imprisonment for the offence contrary to s 467.12 of the Criminal Code that related to the offence in s 465 of the Criminal Code, to run consecutively to (1)-(6); and
(8) 2 years’ imprisonment for the offence contrary to s 467.12 of the Criminal Code that related to the offence in s 5 of the Controlled Drugs and Substances Act, to run consecutively to (1)-(6) but concurrently to (7).
In summary, Mr Hersi was sentenced to 13 years’ imprisonment. Justice Clark further made an order pursuant to s 743.6 of the Criminal Code that Mr Hersi’s parole be delayed until he had served at least half of his sentence.
A firearms prohibition order pursuant to s 109 of the Criminal Code was also made against Mr Hersi.
Weapons trafficking
Possession of firearm knowing its possession is unauthorized
Commission of offence for criminal organization
Mr Mahadale was charged with, and convicted of, two counts of commission of an indictable offence for the benefit of, at the direction of, or in association with, a criminal organization. These counts related to each of the two other offences of which he was convicted.
Mr Mahadale was found guilty of the count which related to the offence in s 99 of the Criminal Code, but was acquitted of the count which related to the offence in s 92 of the Criminal Code.
Like Mr Hersi, Justice Clark found Mr Mahadale to be a ‘serious recidivist’ and ‘[did] not accept that he is now prepared to forsake his criminal ways and live a law-abiding life’. Justice Clark further found that ‘while not quite so dismal, perhaps, as Mr Hersi’s prospects, I see little in Mr Mahadale’s antecedents to suggest that he is likely to be rehabilitated’.
As with Mr Hersi, there were few mitigating factors of note in relation to Mr Mahadale. He too was relatively young, and had some family support, but his brother was also a member of the same criminal gang.
Justice Clark noted several aggravating factors in Mr Mahadale’s case. These included that:
(i) in many of the intercepted phone conversations, he was heard to be repeatedly speaking about the acquisition of firearms;
(ii) in one intercept he gave approval to another member of the organization to commit an armed robbery;
(iii) in another intercept he spoke about committing an armed robbery himself;
(iv) the person to whom he offered to transfer a firearm was a young person;
(v) he was bound by numerous orders prohibiting him from possessing firearms; and
(vii) in respect of the offence against s 99 of the Criminal Code, the offence was committed for the benefit of and in association with a criminal organization.
Justice Clark also noted one intercept phone conversation in which Mr Mahadale had been recorded bragging to fellow gang members about how easy he had found his previous time in jail.
Mr Mahadale was sentenced to:
(1) 5 years’ imprisonment for the offence contrary to s 99 of the Criminal Code; and
(2) 3 years’ imprisonment for the offence contrary to s 467.12 of the Criminal Code that related to the offence in s 99, to run consecutively to (1).
Mr Mahadale was therefore sentenced to 8 years’ imprisonment. Justice Clark further made an order pursuant to s 743.6 of the Criminal Code that Mr Mahadale’s parole be delayed until he had served at least half of his sentence
A firearms prohibition order pursuant to s 109 of the Criminal Code was also made against Mr Mahadale
Ontario Superior Court of Justice
R v Hersi, 2015 ONSC 5378
