W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:
539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged; or
(d) if he or she is ordered to stand trial, the trial is ended.
(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).
(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.
[Repealed, 2005, c. 32, s. 18(2).] R.S., c. C-34, s. 467; R.S.C., 1985, c. 27 (1st Supp.), s. 97; 2005, c. 32, s. 18.
COURT OF APPEAL FOR ONTARIO
Strathy C.J.O., Cronk and Hourigan JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Afshin Dastani
Appellant
Alan D. Gold and Melanie Webb, for the appellant
Jeanette Gevikoglu, for the respondent
Heard: October 24, 2014
On appeal from the sentence imposed on March 13, 2013 by Justice Peter Bourque of the Ontario Court of Justice, sitting without a jury.
ENDORSEMENT
1The appellant operated a large-scale, ephedrine exportation business, wherein he repackaged, relabelled and shipped ephedrine products. He pled guilty to eight separate offences related to this operation, including: possession for the purpose of exporting ephedrine; exporting ephedrine; two counts of possession of proceeds of crime; laundering proceeds of crime; and fraud against the Canadian government over $5,000, in relation to his evasion of at least $500,000 in income taxes.
2The appellant was sentenced to two years’ less a day imprisonment, followed by 2 years’ probation.
3The appellant appeals his sentence, submitting that the sentencing judge erred in ordering a custodial rather than a conditional sentence. He argues that the sentencing judge ignored or misapprehended the evidence before him, overemphasized general deterrence, and erred in his analysis of the availability of a conditional sentence.
4We disagree. Considerable deference is owed to a sentencing decision. An appellate court will only intervene if the sentence reflects an error in principle, demonstrates a failure to consider or give appropriate weight to a relevant factor, or is demonstrably unfit.
5The appellant submits that the sentencing judge misapprehended the evidence when he concluded that the appellant was a “principal driving mind for all offences”. He argues that, although he may have been a principal behind the ephedrine exportation business, the laundering of the proceeds of crime was undertaken by his lawyer. The appellant asserts, therefore, that he was not a principal in relation to that offence.
6We see no error in the sentencing judge’s finding in this regard. The agreed statement of facts establishes that the appellant specifically sought out the lawyer for assistance in laundering the proceeds of crime and that he provided funds to the lawyer for that purpose.
7The appellant further submits that because ephedrine is not an illegal drug but a controlled substance, this case is different from typical cases involving a large-scale drug operation. Given these unique circumstances, according to the appellant, the need for general deterrence is eliminated or substantially reduced.
8We would not give effect to this submission. This was a large scale, complicated fraud involving the illegal sale and distribution of a controlled substance, which included a significant tax fraud. These are not particularly unique circumstances and we see no error in the sentencing judge’s conclusion that general deterrence was a significant factor on sentence.
9Although the sentencing judge might have erred in the sequencing of his analysis of the availability of a conditional sentence (i.e., in considering the availability of a conditional sentence before determining and imposing the appropriate sentence), the sentence imposed was supported by the evidence. It is clear from the reasons for sentence, that the sentencing judge reviewed and considered the mitigating factors raised by counsel for the appellant. He balanced those factors against the aggravating factors and concluded that this was not an appropriate case for a conditional sentence. We see no basis for appellate interference with that conclusion.
10We are also of the view that the sentence was fit in the circumstances. As this court recently reiterated in R. v. Gour, 2014 ONCA 51, “custodial sentences are the norm in cases of large-scale fraud”. This was a sophisticated enterprise, generating large sums, and was carried out over an extended period. It is also significant that after an initial police search, the appellant re-arranged his affairs to continue his operations. The sentence was well within the range of sentences for large-scale government frauds. Indeed, the sentence imposed might be considered lenient, notwithstanding the significant mitigating factors at play in this case. The fresh evidence filed on appeal does not alter this conclusion.
11Accordingly, while leave to appeal sentence is granted, the sentence appeal is dismissed. Given the appellant’s current employment, we are recommending him for the temporary absence program.
“G.R. Strathy C.J.O.”
“E.A. Cronk J.A.”
“C. William Hourigan J.A.”