ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-90000065-0000

DATE: 20130726

BETWEEN:

HER MAJESTY THE QUEEN

– and –

FARDIN AYATI-GHAFFARI and SAEID CHEGINI

Christopher Bundy and Bari Crackower, for the Crown

Stacey Nichols for Fardin Ayati-Ghaffari and Susan Adams for Saeid Chegini

HEARD: June 11, 2013

Thorburn J.

REASONS FOR SENTENCE

I. OVERVIEW

[1] Three shipments of Opium were imported from Iran into Canada:

(a) The first shipment contained 17 kilograms of Opium hidden in jars of pickled cucumbers on January 16, 2010. According to the expert evidence of Corporal Rodney Gray[^1], this represents a 5.8 year supply based on usage of 8 grams per day (the rate at which an addict would consume Opium). The first shipment has a street value of between $374,000 and $500,010.

(b) The second shipment contained 97.8 kilograms Opium hidden in the back of refrigerators between December 22, 2009, and February 9, 2010. According to the expert evidence, this represents a 33.5 year supply based on usage of 8 grams per day (the rate at which an addict would consume Opium.) The second shipment has a street value of between $2,151,600 and $2,934,000.

(c) The third shipment contained 7 kilograms of Opium hidden in containers of cherry syrup between August 27 and September 30, 2010. According to the expert evidence, this represents a 2.4 year supply based on usage of 8 grams per day (the rate at which an addict would consume Opium). The third shipment has a street value of between $154,000 and $210,000.

[2] Fardin Ayati-Ghaffari was convicted by a jury of conspiracy to import Opium and importation of the three shipments of Opium noted above.

[3] Saeid Chegini was convicted of conspiracy to import the first and second shipments and importation of the second shipment of 97.8 kilograms of Opium in refrigerators.

[4] These offences contravene section 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c.19 thereby constituting an offence contrary to section 465(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46.

[5] It is agreed that these are very serious offences that warrant a significant period of incarceration. The parties do not agree as to the proposed sentence. The Crown suggests that an appropriate global sentence is 18 to 20 years for Ayati-Ghaffari and 16 to 18 years for Saeid Chegini. Ayati-Ghaffari’s position is that a sentence of 10 to 12 years is appropriate and Chegini’s position is that a sentence of 7 to 9 years is appropriate.

II. EVIDENCE REGARDING THE OFFENCE

Opium Found in Pickled Cucumbers

[6] On or about January 14, 2010, Opium was imported into Canada. On January 16, 2010 Canada Border Services Agents at the Port of Montreal located 17 kilograms of Opium in six cans of pickled cucumbers in a shipping container imported from Iran. The Opium was rolled and wrapped in condoms and plastic and placed inside the cans.

[7] The Opium is valued at between $374,000 and $510,000.

[8] The items were consigned to Green Pars Import and Export – a sole proprietorship registered by Ayati-Ghaffari on December 10, 2009. The Bill of Lading states that the goods were shipped on December 2, 2009. Ayati-Ghaffari went to pick up the pickle shipment on January 20, 2010. Saeid Chegini also went to the storage facility at 947 Warden Avenue.

[9] Chegini and Ayati-Ghaffari arrived together and spent over three hours unloading the goods. Their presence together at the warehouse was captured on police video surveillance.

Opium found in Refrigerator Walls

[10] On January 20, 2010, Opium was found secreted in the walls of refrigerators in a container of furniture equipment and household items imported from Iran. Bolts and screws were placed in the back of refrigerators and Opium was inserted. The Opium weighed 97.068 kilograms and was valued at between $2,151,600 and $2,934,000. The original consignee was Somayyeh Ghocheh. On the arrival notice, the consignee was listed as Reza Zalitoranj.

[11] Zalitoranj cleared the February 9, 2010 shipment through customs. Ayati-Ghaffari gave Zalitoranj his instructions and the money to pay the customs duties. Ayati-Ghaffari told him he had gotten the money from Saeid Chegini.

[12] Toronto Police followed the container to the storage facility at 947 Warden Avenue on February 9, 2010. The customs seal was given to Reza Zalitoranj who met the truck at the storage facility. Ayati-Ghaffari and Chegini also arrived when the container did. Ayati-Ghaffari and Chegini were observed taking boxes into their vehicles on February 9, 2010. Portions of their meeting are captured on police surveillance video. Ayati-Ghaffari locked the storage unit and went home.

Opium found in Cherry Syrup

[13] In September of 2010, Canada Border Services Agents at Pearson International Airport located Opium in a shipment of food products imported from Iran. The Opium was in liquid form secreted in jugs of cherry syrup. The Opium weighed approximately 7 kilograms and was valued at between $154,000 and $210,000.

[14] Reza Zalitoranj went to customs to show the paperwork and find out how much was owed in taxes. He paid the taxes the following evening and the goods were released. Ayati-Ghaffari gave him the key to the U-Haul truck. He took the goods in a U-Haul truck to a storage facility where he met Ayati-Ghaffari. They started to unload the goods and it looked like someone had opened them. Zalitoranj testified that Ayati-Ghaffari told him Chegini went to Iran to see what happened to the drugs.

[15] Ayati-Ghaffari paid the fees required to release the goods from customs. He testified that the food stuffs were his and they were part of the plan for the grocery store he was going to open in partnership with Reza Zalitoranj and possibly Saeid Chegini.

[16] On September 30, 2010 Officer Marie Garland observed Ayati-Ghaffari go to the storage locker at 947 Warden Avenue. Also on September 30, at approximately 10:22 pm, Officer Dana Clark observed Reza Zalitoranj speaking to Ayati-Ghaffari at the storage site at 947 Warden Avenue. Ayati-Ghaffari exited on the west side of the building carrying three boxes approximately 1 foot by 1 foot and loaded them into the back of a Mercedes and then went into 947 Warden Avenue.

The Qualities of Opium

[17] The quantity of drugs imported was huge. It can be inferred from these large quantities that there was a distribution network in Canada.

[18] Expert evidence was tendered by Corporal Rodney Gray on the use, distribution, supply, sale, value, pricing, packaging and modus operandi of those who traffic in Opium. Officer Gray testified that Opium is an addictive drug that is a building block for heroin: 10 parts of Opium yields one part heroin.

[19] Opium is approximately the same price as hashish but is a more serious drug than hashish.

[20] An occasional user may use one to two grams per day and an addict may consume eight to ten grams per day. The user of Opium becomes high and then sleepy such that the body functions slow down and heart rate decreases. Addicts find it hard to work, socialize and look after themselves.

[21] The second shipment in this case is the largest reported case involving Opium.

III. EVIDENCE REGARDING THE OFFENDERS

The Roles Played by the Offenders

[22] Ayati-Ghaffari was convicted of importing all three shipments of Opium while Chegini was convicted of conspiracy to import two shipments and importation of the second shipment only (which was the largest shipment of the three).

[23] Ayati-Ghaffari is 49 years old and Chegini is 29 years old. Neither has a prior criminal record and both were productive members of society. The families of each are supportive and have expressed a willingness to assist with their rehabilitation. Several family members have attended these proceedings and many others have written letters of support. Each has skills he can make use of upon his return into the community.

[24] Neither is a drug addict and the sole motivation in each case was greed.

[25] Ayati-Ghaffari has serious health issues including diabetes that are not disputed.

[26] Both played important but different roles although Chegini’s was less prominent and he was only convicted of importing one shipment of Opium: Chegini spoke regularly and frequently to Ayati-Ghaffari as evidenced by the wiretap surveillance conducted, he, unlike Ayati-Ghaffari, travelled frequently to Iran, and he went to the storage site when the goods arrived.

[27] Ayati-Ghaffari arranged for the consignment of the goods, recruited Reza Zalitoranj to pick up the goods and take them to the storage facility and arranged for payment of the taxes for the goods upon their arrival in Canada. He received the drugs on several occasions and was convicted of conspiring to bring in three shipments of Opium. He only dealt with the drugs once they arrived in Canada.

[28] I do not accept that Chegini was a minor player who was influenced by Ayati-Ghaffari. On the evidence before me, notwithstanding the age difference, they seemed to be friends and treated one another as equals.

Time and Conditions Spent in Pre-Sentence Custody

[29] Ayati-Ghaffari and Chegini each spent 912 days in pre-sentence custody.

[30] Ayati-Ghaffari spent 641 days at the Toronto Jail. He spent 265 nights triple bunked. The cells are 6’ wide, 9’ deep and 10’ high and do not have windows. The Toronto Jail chooses to keep no records as to the number of lockdowns that occur. During lockdowns, privileges normally offered to inmates such as yard time, visits and clothing changes are not permitted. There is no exercise equipment available and yard time is offered an average of 5 days per month. During the time of his incarceration, there were problems with mould in the institution.

[31] Ayati-Ghaffari spent 271 days at the Toronto East Detention Centre (from October 28, 2012 through July 25, 2013). For 94 of the 170 days he was offered yard time. He spent another 48 days in court and was therefore unavailable for yard time. It is agreed that there was one incident wherein Ayati-Ghaffari swore at a guard. On another occasion, a guard threw out a suit and shirt that belonged to him. Ayati-Ghaffari received compensation in the amount of $250.

[32] Chegini spent 755 days in the Toronto Jail. He spent 436 nights triple bunked.

[33] Chegini spent 157 nights (between June 3 to November 7, 2011) at the Toronto East Detention Centre. He spent 45 nights triple bunked. He was offered yard time 84 times. During this time there were 27 lockdowns.

[34] All parties agree that Chegini and Ayati-Ghaffari should be given some enhanced credit for the time spent in presentence custody at the Toronto Jail given the conditions of their detention at that facility. The Crown takes issue with the Defence request for enhanced credit for pre-sentence custody at the East Detention Centre as, according to the representative from the institution and the documentation provided, the conditions were better at the East Detention Centre than at the Toronto Jail.

IV. THE LAW

Sentencing Principles

[35] Section 718 of the Criminal Code, R.S.C., 1985, c. C-46 provides that in sentencing a person convicted of offences, the following objectives must be considered:

1. denunciation of unlawful conduct;

2. deterring the offender and others from committing offences;

3. separation of offenders from society where necessary;

4. rehabilitation of offenders;

5. reparations for harm done to victims or to the community; and

6. promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[36] The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender and should reflect the aggravating and mitigating circumstances relating to the offence and the offender. Similar sentences should be imposed on similar offenders for similar offences.

[37] In cases involving the trafficking of large quantities of illegal drugs, the principles of general deterrence and denunciation are of particular importance because Schedule 1 drugs are both dangerous and addictive.[^2]

[38] Importing drugs is a more serious crime than trafficking because Opium is not grown in Canada and there would be no Opium problem in Canada without importers.[^3]

[39] A person cannot be convicted of two offences where both arise out of the same facts and in substance only one “crime” has been committed. Where such offences are committed, a conditional stay on the lesser charge will be entered.[^4] Consecutive sentences may however be imposed where the offences are temporally linked but constitute invasions of different legally protected interests.[^5]

[40] In accordance with the principle that a person cannot be convicted of two offences where both arise out of the same facts and in substance only one “crime” has been committed (the Kienapple[^6] principle), the convictions against Ayati-Ghaffari and Chegini for conspiracy to import Opium between December 18, 2007 and January 27, 2011 (the global conspiracy) should be stayed in favour of the convictions applicable to each for conspiracy to import the three loads of Opium as against Ayati-Ghaffari and one load of Opium as against Chegini. I note that both Ayati-Ghaffari and Chegini were found not guilty of importing Opium between December 18, 2007 and July 30 2008 (Counts 2 and 3) and there were no further shipments of Opium after the three shipments at issue in these reasons.

[41] Moreover the principle of totality requires the court to craft a global sentence that is not excessive.[^7] If the total sentence is excessive the court must adjust the sentence so that the total sentence is proper.[^8] This can be done either by adding the individual sentences and then adjusting accordingly[^9] or by making a global sentence and calculating individual sentences from that number.[^10]

Sentences Ordered in Comparable Cases

[42] All parties made submissions based on one global sentence for each of Ayati-Ghaffari and Chegini.

[43] A review of sentencing ranges provides guidelines to trial judges who must impose similar penalties for similar offences of a similar nature involving similar offenders.[^11] In this case, there are few decisions concerning the importation of large quantities of Opium. Moreover there is no decision that addresses the importation of this large a quantity of Opium.

[44] Although Opium is a Schedule 1 substance (a classification reserved for the most serious of drugs) it is recognized as being less addictive and less expensive than heroin. In R. v. Abolmolouk [1987] 23 O.A.C. 144 the court accepted the evidence of Staff Sergeant Brown that,

“…opium is a hard narcotic, which can be converted to a morphine base, which in turn can be converted to heroin. Opium however, is only one-tenth of the strength of heroin..and that raw opium is about ten percent morphine by weight….The LeDain commission notes at p. 301 that the modes of use of raw opium, such as smoking or ingestion, produce a “decidedly” lower dependence liability” than the injection of morphine or heroin. Nevertheless, it cannot be equated to hashish, even if the street value of opium is only slightly higher than hashish.”

[45] While counsel were unable to find cases involving the importation of large quantities of Opium such as this, they provided me with some cases involving smaller quantities of heroin and Opium.

[46] In R. v. Dyal, [2007] B.C.J. No. 917 (BCSC) the accused was sentenced to 9 years for importing 11.4 kg of heroin worth $6 million. The accused was a 47 year old woman with no prior record. She was a courier whose involvement was “neither innocent nor unsophisticated”. The court held that she should not be treated more leniently that other drug importers because couriers are recruited precisely because they are recognized as sympathetic individuals. The court also noted that “Opium is a far less serious drug than heroin.”

[47] In R. v. Sidhu, 2009 ONCA 81, [2009] 242 C.C.C.(3d) 273 (O.C.A.) a first time offender agreed to act as a courier and import 9.5 kg of heroin. He was sentenced to 14 years in custody.

[48] In R. v. Aghabeighi (2004), BCCA 263, a first time offender was sentenced to three years for planning and deciding to import 10 kg of Opium into Canada.

[49] In R. v. Frost, 2011 ONSC 6448 (S.C.J.) a first time offender who admitted to having trafficked marijuana in the past but not getting caught, was sentenced to 16 1/2 years for conspiracy to import 1,360 kilograms of cocaine worth approximately $54.4 million.

Credit for Time Spent in Pre-Sentence Custody

[50] Section 719(3.1) of the Criminal Code allows a sentencing judge to credit pre-sentence custody at a ratio up to, but not exceeding, 1.5:1 for each day spent in pre-sentence custody where, on consideration of all relevant circumstances, such credit is necessary to achieve a fair and just sanction in accordance with the statutory scheme for sentencing and punishment set out in the Criminal Code. On a proper record, the relevant circumstances that may justify enhanced credit include ineligibility for remission and parole while in remand custody.[^12]

V. SENTENCING DECISION

[51] I have considered the principles of sentencing, the aggravating and mitigating circumstances, the duration and conditions of pre-sentence custody, the principle of parity, the submissions of counsel and the cases referred to me.

[52] This was a well-planned scheme to import large quantities of Opium. The Opium was hidden in pickled cucumbers, in the walls of refrigerators and in cans of liquid cherry syrup. The shipments were sent to third parties. Others were recruited and paid to pick up the shipment and there were numerous conversations captured on surveillance where both Ayati-Ghaffari and Chegini participated in conversations to discuss the shipment of Opium.

[53] While Chegini was convicted of conspiring to import two shipments and importing only the Opium found in refrigerator walls, and Ayati-Ghaffari was convicted of importing three shipments of Opium, both Ayati-Ghaffari and Chegini played a significant role in the conspiracy to import and importation of Opium.

[54] In the case of both Ayati-Ghaffari and Chegini, the following mitigating factors are present:

(a) neither has a previous criminal record;

(b) both were productive members of society;

(c) both have a supportive family who will assist with their rehabilitation. Several family members have attended these proceedings and many others have written letters of support;

(d) each has skills he can make use of upon his return into the community; and

(e) in the case of Ayati-Ghaffari, he has serious health issues that are not contested.

[55] The aggravating factors are as follows:

(a) each was an important player in this criminal conspiracy and importation of Opium;

(b) the drug in question is a Schedule 1 substance, and a very dangerous drug;

(c) this was a well-planned and organized operation;

(d) the sole motivation was greed;

(e) the quantity of Opium imported was immense and the adverse effects that could have been visited upon users in Canada are enormous; and

(f) in the case of Ayati-Ghaffari, he was convicted of importing three separate shipments of Opium.

[56] According to the expert evidence and existing case law, while Opium is a most serious Schedule 1 drug, it is 1/10th the strength of heroin. Moreover Opium produces a decidedly lower dependence liability than heroin.

[57] Given the seriousness of these offences and the importance of denunciation and deterrence, but mindful of the circumstances of this particular case, I believe an appropriate global sentence for Ayati-Ghaffari is 14 years. This sentence is broken down as follows:

(i) Importation of 17 kilograms of Opium in pickled cucumbers: (Count 4) 5 years;

(ii) Importation of 97 kg of Opium in refrigerator walls: (Count 6) 12 years;

(iii) Importation of 7 kg of Opium in cherry syrup: (Count 9) 3 years;

(iv) Conspiracy to import 17 kilograms of pickled cucumbers (Count 7) 5 years concurrent to Count 4;

(v) Conspiracy to import 97 kilograms of Opium in refrigerator walls (Count 8) 12 years concurrent to Count 8; and

(vi) Conspiracy to import 97 kilograms of Opium in refrigerator walls (Count 10) 3 years concurrent to Count 9.

(Each of the three sentences for conspiracy to import Opium is to be served concurrent to the importation sentences that pertain to those shipments as set out above.)

[58] Thereafter, in keeping with the totality principle and the importance of parity with existing cases, the global sentence is reduced to 14 years.

[59] Given the seriousness of these offences and the importance of denunciation and deterrence, but mindful of the circumstances of this particular case, I believe an appropriate global sentence for Chegini for importation of the 97 kilograms of Opium in refrigerator walls (Count 6) is 12 years. The sentence for conspiracy to import 17 kilograms of Opium in pickled cucumbers (Count 7) is 5 years and the sentence for conspiracy to import 97 kilograms of Opium in refrigerator walls (Count 8) is 12 years. Each of the two conspiracy convictions are to be served concurrent to the sentence for importation of 97 kilograms of Opium.

[60] Ayati-Ghaffari and Chegini shall each receive 1.5:1 credit to account for some of the time spent at the Toronto Jail detention facility to reflect the extremely poor conditions outlined above, the fact that programs were unavailable to them and that this time spent will not be credited toward their parole eligibility.

[61] Ayati-Ghaffari shall receive enhanced credit for 450 of the 641 days spent in the Toronto Jail and Chegini shall receive enhanced credit for 550 of the 755 days spent in the Toronto Jail. As a result, Ayati-Ghaffari will receive credit for 1137 days in pre-sentence custody and Chegini will receive credit for 1187 days in pre-sentence custody.

[62] Finally, there will be an order imposed to prohibit Ayati-Ghaffari and Chegini from possessing weapons for life pursuant to section 109 of the Criminal Code, and a DNA order.

[63] A further hearing will be scheduled to address the forfeiture order sought by the Crown regarding a vehicle under restraint allegedly used to unload shipments of Opium.

Thorburn J.

Released: July 26, 2013

COURT FILE NO.: CR-13-90000065-0000

DATE: 20130726

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

FARDIN AYATI-GHAFFARI and SAEID CHEGINI

REASONS FOR sentence

Thorburn J.

Released: July 26, 2013

[^1]: Expert evidence was tendered by Corporal Rodney Gray on the use, distribution, supply, sale, value, pricing, packaging and modus operandi of those who traffic in Opium.
[^2]: R. v. Cunningham, 1996 1311 (ON CA), [1996] O.J. No. 448 (C.A.) and R. v. C.N.H., 2002 7751 (ON CA), 62 O.R. (3d) 564 (C.A.)).
[^3]: R. v. Bajada, 2003 15687 (ON CA), [2003] O.J. No. 721 (C.A.)
[^4]: Kienapple v. R., 1974 14 (SCC), [1975] 1 S.C.R. 729
[^5]: R. v. Houle, 2008 ONCA 287, 79 W.C.B. (2d) 64 at para. 4.
[^6]: R. v. Kienapple, supra, note 1
[^7]: R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 at para. 42 and R. v. Gummer, 1983 5286 (ON CA), [1983] O.J. No. 181 (C.A.) at para 13.
[^8]: R. v. D.S.K., 2005 SKCA 18, [2005] S.J. No.97; .R. v. Hicks, 2007 NLCA 41, [2007] N.J. No. 219
[^9]: R. v. Newhook , 2008 NLCA 28, [2008] N.J. No. 258 at para. 55.
[^10]: R. v. Lombardo, 2008 NSCA 96, [2008] N.S.J. No. 456 at para 25.
[^11]: R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290 at para 244.
[^12]: R. v. Summers, 2013 ONCA 147 paragraph 8.