Indictment No. 08-G30392
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
against
ESMAIL SHARIFI
REASONS FOR SENTENCE
DELIVERED ORALLY BY THE HONOURABLE MR. JUSTICE R. MARANGER, on Tuesday, February 21, 2012, at OTTAWA, Ontario.
APPEARANCES:
Roderick Sonley Counsel for the Federal Crown
Richard Addelman Counsel for the accused
(i) Table of Contents
SUPERIOR COURT OF JUSTICE
TABLE OF CONTENTS
TRANSCRIPT ORDERED: February 21, 2012
TRANSCRIPT COMPLETED: February 28, 2012
APPROVED BY MARANGER J.: March 7, 2012
ORDERING PARTY NOTIFIED: March 9, 2012
R. v. Esmail Sharifi
TUESDAY, FEBRUARY 21ST, 2012
REASONS FOR SENTENCE
MARANGER J. (Orally):
5 [1] Esmail Sharifi was found guilty following a trial of 10 counts involving trafficking in cocaine, conspiracy to traffic in cocaine and conspiracy to possess cocaine for the purposes of trafficking, possession of marijuana,
10 breaches of undertakings, careless storage of ammunition, and possession of ammunition contrary to a court order. Some of the counts were stayed by reason of the Kienapple principle.
15 Circumstances of the offence
[2] At the conclusion of trial, the Court found that:
• Project Bulldawg was the codename for an
Ottawa Police Service's investigation of a
20 suspected crime ring involving the illegal sale of narcotics between January 2006 and January 2007.
• The primary targets of the investigation
were Giuseppe Battista, James Kongkhaw and
25 Cory Farrell.
Reasons for Sentence
Maranger J.
• The evidence at trial supported the proposition that the accused was involved with at least some members of this group (specifically Ali Majnoon and James
5 Kongkhaw) in the purchase and sale of cocaine in the City of ottawa. It was at the kilogram level involving thousands of dollars.
• He was specifically convicted of trafficking
10 in 1¼ kilogram of cocaine and, on a second occasion, conspiracy to traffic in 7 oz of cocaine.
• During the execution of a search warrant of
his residence and vehicle, the following
15 items were found: 9 mm bullets, an asp, a bulletproof vest, a debt list and a notebook belonging to the accused.
• The trafficking and conspiracy to traffic in
cocaine in this case involved more than one
20 transaction.
• He was bound by undertakings he had given to the police at the time of his arrest.
The personal circumstances of the offender
[3] Esmail Sharifi is married to Nariman Wehbe,
25 and they are expecting their first child in
Reasons for Sentence
Maranger J.
April 2012.
[4] It is clear, based on the letters of support filed at the sentencing hearing, that his family believe in him and are very supportive of him
5 despite these convictions. Some of his family were present throughout the trial. Present during the conduct of the sentencing hearing were: his wife, both his parents, his siblings and cousins. He has overwhelming family
10 support.
[5] The pre-sentence report disclosed that he has a criminal record, including one for possession for the purposes of trafficking in a Schedule I substance, for which he received an
15 18-month conditional sentence in 2007. He also has a series of other minor convictions which, frankly, are somewhat dated.
[6] Counsel representing Mr. Sharifi took issue with certain aspects of the pre-sentence report,
20 particularly as it related to his conduct while on probation or while serving his conditional sentence, specifically that part of the presentence report that indicated, "his overall response to community supervision can best be
25 described as non-compliant". For the record, I
Reasons for Sentence
Maranger J.
accept that any breaches committed by this individual were minor and technical and, consequently, were afforded the appropriate weight.
5 [7] However, I have considered those parts of the report that described his education, employment, criminal record. Of note is the
fact that Mr. Sharifi has a prior conviction for possession for the purposes of trafficking in
10 cocaine, for which he was granted a conditional sentence.
[8] Counsel representing Mr. Sharifi submitted that his client was an addict, and that his involvement in the drug trafficking culture was
15 in large measure to satisfy his addictions.
There is evidence that that is the case, specifically an excerpt from a report filed in a prior proceeding where Dr. McFeely described Mr. Sharifi in the following terms:
20 It is clear that Mr. Sharifi has had a problem with street drug abuse since the age of 15 onwards. This has included cocaine, marijuana and ecstasy, but the most serious of these problems is that of cocaine
addiction. As in all cases of cocaine addiction, it is the cocaine problem that takes over and has left him incapable of fighting the problem until
25 he actually got off cocaine. At one point, he was snorting up to 5-6 grams
Reasons for Sentence
Maranger J.
per day and at the age of 25 he badly needed to see a psychiatrist and start treatment.
[9] I take into account that this can be considered part of this gentleman's overall
5 personal circumstances.
Principles of sentencing
[10] The offences that Mr. Sharifi has been convicted of are serious offences. The offences of trafficking in and conspiracy to traffic in
10 Schedule I substances carry a maximum penalty of life imprisonment.
[11] Section 718 of the Criminal Code of Canada sets out the governing principles of sentencing. That section states:
15 The fundamental purpose of sentencing is 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; (b) to deter the offender and other
20 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,
25 and acknowledgement of the harm done to victims and to the
Reasons for Sentence
Maranger J.
community.
[12] In a case involving drug trafficking, the primary principles are denunciation and deterrence.
5 [13] There are two aspects to the principle of deterrence; they are general deterrence and specific deterrence. Specific deterrence relates to the offender himself and aims to deter that offender from re-offending. General
10 deterrence relates to the belief that an appropriate sentence will have the effect of deterring other members of the public from committing similar offences. In this case, both specific and general deterrence are applicable.
15 Mitigating or aggravating factors
[14] As stated, in mitigation of penalty, Mr.
Sharifi has a great deal of family support
behind him, and he seems to legitimately want to change his ways. I further think it is fair to
20 say that he is in that category of an addict/trafficker, and that his involvement in the drug culture was to feed a habit.
[15] The aggravating factors are the amount of and nature of the drugs involved, and the fact
25 that it involved a series of transactions. The
Reasons for Sentence
Maranger J.
fact that ammunition was found in his residence, and a bulletproof vest was found in his car are also somewhat disconcerting.
[16] Defence counsel's position, in a nutshell,
5 is that the Court should sentence Mr. Sharifi to a term of imprisonment of two years less a day, and then allow him to serve that sentence in the community.
[17] The thrust of the argument is that his
10 overwhelming family support, the fact that he was an addict/trafficker, and that he was a bottom player in Project Bulldawg, and when considering the range of sentences given to
other more important offenders, that this was an
15 appropriate range of penalty. Mr. Addelman specifically highlighted a conditional sentence that was granted to Jevin Brown, who was said to be an addict involved in this project and who
was a similar offender as Mr. Sharifi in the
20 Project Bulldawg prosecution.
[18] Crown counsel submits that the accused before the Court was a mid-level participant in this project, he was inextricably intertwined in the purchase and sale of kilogram levels of
25 cocaine, and that the range of penalty for this
Reasons for Sentence
Maranger J.
type of involvement requires a term of 5 to 7 years in a federal penitentiary, and that a sentence of two years less a day, in these circumstances, is completely inappropriate.
5 [19] Crown counsel has provided a series of cases that support the proposition that federal terms of penitentiary are the norm for this type of offence.
[20] Frankly, despite the compelling and
10 articulate plea advanced by both lawyers representing Mr. Sharifi, this is a case that clearly requires a term in a federal penitentiary. In this case, I would impose a global penalty of five years, less whatever
15 credit is given to this accused for the amount of time he was on bail conditions, and I would impose that penalty for the following specific reasons:
• The prior conviction for trafficking in
20 cocaine.
• The convictions before the Court involve two separate and distinct transactions involving the sale of cocaine.
• I take into account the evidence that he is
25 an addict/trafficker and seems to want to
Reasons for Sentence
Maranger J.
get his life on the right track.
• And I also accept the overwhelming family support as a consideration of this range of sentence.
5 [21] I would break down the sentence in the following manner:
• Count 1, conspiracy to traffic: 3 years
• Count 7: 3 years concurrent
• Count 9: two years consecutive
10 • Count 10: 30 days concurrent
• Count 12: 30 days concurrent
• Count 13: 30 days concurrent
• Count 14: 30 days concurrent
• Count 15: 30 days concurrent
15 Credit for pre-trial bail conditions
[21] It was submitted by Mr. Joseph Addelman that, based upon approximately 40 months of stringent bail conditions, Mr. Sharifi should be given credit for 12 months. He also submitted a
20 further month should be granted because of 22 days his client spent in custody in relation to these charges.
[22] I have considered all of these arguments and am prepared, in all the circumstances, to credit
25 12 months total, leaving a balance to be served
Reasons for Sentence
Maranger J.
of four years imprisonment.
Summary
[23] Consequently, the accused is sentenced to serve a term of incarceration of four years
5 total. In addition, he will be subject to a DNA order as well as a weapons prohibition order pursuant to s. 109(2)(b) for life.
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Certification
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CERTIFICATE OF TRANSCRIPT
EVIDENCE ACT, subsection 5(2)
I, Lynn Carrière, certify that this document is a true and
10 accurate transcription of the recording of R. v. Esmail Sharifi in the Superior Court of Justice held at 161 Elgin Street, Ottawa, Ontario, taken from Recording No. 0411-23-20120221, which has been certified in Form 1 (Judicially edited and approved by Maranger J.)
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February 28, 2012
_________________ _______________________________
Date Lynn Carrière
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