SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-09-19718
DATE: 2013-01-22

ONTARIO

B E T W E E N:

Her Majesty the Queen

Colleen Liggett, for the Crown

and -

Temorshah Hafizi

Joseph Addelman, for Temorshah Hafizi

Delivered Orally: December 20 , 2012

at Ottawa, Ontario

Madam Justice B. R. Warkentin

Reasons on Sentence

[1] On October 4, 2010 I convicted Mr. Temorshah Hafizi with possession of cocaine for the purposes of trafficking, possession of oxycodone and methamphetamine, possession of ammunition while prohibited from doing so and breach of a probation order.

[2] I heard submissions on sentence on November 29, 2012. The Crown sought a sentence of 15 to 18 months' incarceration. As at November 29, Mr. Hafizi had been held without bail for 294 days. The Crown sought an additional term of imprisonment of 5 to 8 months.

[3] Counsel for the defence submitted that time served would be the appropriate sentence.

[4] On December 20, 2012 I sentenced Mr. Hafizi to12 months' incarceration less time served, which on December 20 was 315 days. I agreed to provide these written reasons in due course.

Background

[5] After conducting surveillance on Mr. Hafizi, the Ottawa Police Service obtained a search warrant of Mr. Hafizi's home and car. The search of his car resulted in the discovery of 15 dime bags of cocaine wrapped in a plastic bag located under the rear passenger side floor mat and 13 pills of oxycodone located in an Advil bottle in the front console between the driver's and passenger's seats. Other items found in the car included one or two cell phones and a set of brass knuckles in the same location as the cocaine.

[6] The search of Mr. Hafizi's home resulted in the discovery of 14 bullets in a white sock in the pocket of a men's leather jacket in a closet containing men's clothing in the master bedroom of the home.

[7] Counsel for Mr. Hafizi conceded that if he was convicted on any of the three counts regarding the cocaine, oxycodone and the ammunition, then Mr. Hafizi was in violation of his probation order and a conviction would be entered on that count.

[8] It was also agreed that the test for possession was whether or not Mr. Hafizi had both knowledge of and control of the drugs and the ammunition.

[9] The defence did not dispute that the elements of knowledge and control were present with respect to the oxycodone therefore I found that Mr. Hafizi had both knowledge and control of the oxycodone and was guilty of possession of the oxycodone.

[10] Finally, counsel agreed that if I found that Mr. Hafizi was in possession of the cocaine then he would also be guilty of possession for the purposes of trafficking. Similarly, if I found him guilty of one of the counts of possession, then he would also be guilty of breach of probation.

[11] At the conclusion of the trial, I found that Mr. Hafizi was in possession of the cocaine and of the bullets and therefore found him guilty on all four counts in the indictment being possession of cocaine for the purposes of trafficking, possession of oxycodone and methamphetamine, possession of ammunition while prohibited from doing so and breach of a probation order.

Circumstances of Mr. Hafizi

[12] No viva voce evidence was called at the sentencing hearing, nor was there a pre-sentence report.

[13] Mr. Hafizi is 39 years of age and is married with 5 children. His youngest child is 2 years of age and his oldest is 18. Mr. Hafizi was born in Afghanistan and has lived in Canada since 1990.

[14] Mr. Hafizi has a criminal record. He was convicted of possession for the purpose of trafficking and of being in possession of proceeds of crime in 1999. He was also convicted of assault with a weapon and aggravated assault in 2007 for which he served a custodial sentence and was on probation when he was charged with the current offences.

General Principles of Sentencing

[15] Section 718 of the Criminal Code sets out a list of principles and objectives that applies to a court in order to determine a fair and just sentence. That section states that any sentence must reflect one or more of the following objectives:

• To denounce unlawful conduct;

• To deter the offender and other persons from committing crimes;

• To separate offenders from society where necessary;

• To assist in rehabilitating offenders;

• To provide reparations for harm done to victims or to the community; and

• To promote a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.

[16] The principle of denunciation is an expression of society’s attitude towards the offence committed. It focuses on the aspect of conduct, not on the personal characteristics of the offender. In R v. M. (C.A.), Justice Lamer of the Supreme Court of Canada wrote that, “In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.”[^1]

[17] The principle of deterrence is set out in s. 718(b) of the Criminal Code. Deterrence seeks to provide a threat or example to the offender (specific deterrence), or to others (general deterrence), in order to discourage crime by making it clear that criminal behaviour of this nature will result in the imposition of severe punishment.

[18] It is the task of the sentencing judge to assign the relative weight to the particular aspects of the case before the Court so that the sentence is shaped in a way that is specific to the accused while following a uniform approach.

Case Law: Cocaine Offences

[19] Cocaine is an extremely dangerous and insidious drug with the potential to cause a great deal of harm to individuals and to society.[^2] In fact our courts have repeatedly commented that offences involving the trafficking of cocaine or possession of cocaine for the purpose of trafficking are a “scourge and an epidemic and a cancer in our society” and pose serious dangers to the life of our society.[^3]

[20] Similarly, our courts have determined that the seriousness of the offence of possession of cocaine for the purpose of trafficking warrants an emphasis on the principles of deterrence and denunciation with particular weight given to general and specific deterrence to denounce criminal activity. At the same time, a sentencing judge must take into account all sentencing objectives including the objective of assisting in the rehabilitation of the offender.

b) with larger quantities of cocaine in their possession and

c) who are not themselves addicted but are trafficking for their personal financial gain

typically receive longer sentences.

[22] Mr. Hafizi has two of the three factors, a history of drug related convictions and was trafficking for his personal financial gain. The quantity of drugs found was not high and the drug was cocaine, not crack cocaine.

Mitigating and Aggravating Factors

[23] To assist a trial judge in arriving at a “just and appropriate punishment,” Parliament has enacted s. 718.2 of the Criminal Code which sets out a number of aggravating or mitigating factors that a judge may consider to increase or decrease a sentence.

[24] I do not find that there were any factors that would serve to mitigate the length of sentence to be applied in this case.

[25] It is apparent from the evidence that Mr. Hafizi was engaged in a rather low level of trafficking from his vehicle and there was a lack of other usual indicia of drug trafficking such as debt lists, scales, and other similar items.

[26] These facts do not serve to mitigate the sentence that would be imposed but are factors that are necessary to consider when imposing sentence.

[27] There were some aggravating factors that included the number of cell phones found which may have been used for the purpose of trafficking as well as the possession of the brass knuckles with the dime bags of cocaine in the back floor of the car.

[28] Similarly, that Mr. Hafizi was trafficking in cocaine for commercial gain and not to support his own habit was an aggravating factor as were the facts that he was on probation when charged with these offences for an offence of violence and that he had a prior conviction from 1999 for being in possession for the purposes of trafficking and in possession of proceeds of crime.

[29] In light of these factors, I found that the appropriate sentence for this case was 12 months' incarceration less time served of 315 days.

[30] I also imposed the following orders:

a) that Mr. Hafizi provide a DNA sample to the Crown within 30 days; and

b) a lifetime ban on the possession of weapons (this order is mandatory).

c) And a forfeiture order for the cell phones, brass knuckles, bullets and the 100.00 cash that were collected at the time of the search of Mr. Hafizi's home and car.

Madam Justice B. R. Warkentin

Released: January 22, 2013

COURT FILE NO.: CR-09-19718

DATE: 2013-01-22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

Colleen Liggett, for the Crown

– and –

Temorshah Hafizi

Joseph Addelman, for Temorshah Hafizi

REASONS ON SENTENCE

Warkentin J.

Released Orally: January 22, 2013

[^1]: 1996 230 (SCC), [1996] 1 S.C.R. 500 at para. 81.

[^2]: R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para 8.

[^3]: R. v. Harris [2008] O.J. No. 1976, SCJ, para 21.

Her Majesty the Queen v. Temorshah Hafizi, 2013 ONSC 505

Case Summary

SUPERIOR COURT OF JUSTICE

[1] On October 4, 2010 I convicted Mr. Temorshah Hafizi with possession of cocaine for the purposes of trafficking, possession of oxycodone and methamphetamine, possession of ammunition while prohibited from doing so and breach of a probation order.

[2] I heard submissions on sentence on November 29, 2012. The Crown sought a sentence of 15 to 18 months' incarceration. As at November 29, Mr. Hafizi had been held without bail for 294 days. The Crown sought an additional term of imprisonment of 5 to 8 months.

[3] Counsel for the defence submitted that time served would be the appropriate sentence.

[4] On December 20, 2012 I sentenced Mr. Hafizi to12 months' incarceration less time served, which on December 20 was 315 days. I agreed to provide these written reasons in due course.

[6] The search of Mr. Hafizi's home resulted in the discovery of 14 bullets in a white sock in the pocket of a men's leather jacket in a closet containing men's clothing in the master bedroom of the home.

[7] Counsel for Mr. Hafizi conceded that if he was convicted on any of the three counts regarding the cocaine, oxycodone and the ammunition, then Mr. Hafizi was in violation of his probation order and a conviction would be entered on that count.

[8] It was also agreed that the test for possession was whether or not Mr. Hafizi had both knowledge of and control of the drugs and the ammunition.

[9] The defence did not dispute that the elements of knowledge and control were present with respect to the oxycodone therefore I found that Mr. Hafizi had both knowledge and control of the oxycodone and was guilty of possession of the oxycodone.

[10] Finally, counsel agreed that if I found that Mr. Hafizi was in possession of the cocaine then he would also be guilty of possession for the purposes of trafficking. Similarly, if I found him guilty of one of the counts of possession, then he would also be guilty of breach of probation.

[12] No viva voce evidence was called at the sentencing hearing, nor was there a pre-sentence report.

[13] Mr. Hafizi is 39 years of age and is married with 5 children. His youngest child is 2 years of age and his oldest is 18. Mr. Hafizi was born in Afghanistan and has lived in Canada since 1990.

b) with larger quantities of cocaine in their possession and

c) who are not themselves addicted but are trafficking for their personal financial gain

typically receive longer sentences.

[23] To assist a trial judge in arriving at a “just and appropriate punishment,” Parliament has enacted s. 718.2 of the Criminal Code which sets out a number of aggravating or mitigating factors that a judge may consider to increase or decrease a sentence.

[24] I do not find that there were any factors that would serve to mitigate the length of sentence to be applied in this case.

[25] It is apparent from the evidence that Mr. Hafizi was engaged in a rather low level of trafficking from his vehicle and there was a lack of other usual indicia of drug trafficking such as debt lists, scales, and other similar items.

[26] These facts do not serve to mitigate the sentence that would be imposed but are factors that are necessary to consider when imposing sentence.

[27] There were some aggravating factors that included the number of cell phones found which may have been used for the purpose of trafficking as well as the possession of the brass knuckles with the dime bags of cocaine in the back floor of the car.

Judge

Counsel

Parties

Areas of Law

SUPERIOR COURT OF JUSTICE

[1] On October 4, 2010 I convicted Mr. Temorshah Hafizi with possession of cocaine for the purposes of trafficking, possession of oxycodone and methamphetamine, possession of ammunition while prohibited from doing so and breach of a probation order.

[2] I heard submissions on sentence on November 29, 2012. The Crown sought a sentence of 15 to 18 months' incarceration. As at November 29, Mr. Hafizi had been held without bail for 294 days. The Crown sought an additional term of imprisonment of 5 to 8 months.

[3] Counsel for the defence submitted that time served would be the appropriate sentence.

[4] On December 20, 2012 I sentenced Mr. Hafizi to12 months' incarceration less time served, which on December 20 was 315 days. I agreed to provide these written reasons in due course.

[6] The search of Mr. Hafizi's home resulted in the discovery of 14 bullets in a white sock in the pocket of a men's leather jacket in a closet containing men's clothing in the master bedroom of the home.

[7] Counsel for Mr. Hafizi conceded that if he was convicted on any of the three counts regarding the cocaine, oxycodone and the ammunition, then Mr. Hafizi was in violation of his probation order and a conviction would be entered on that count.

[8] It was also agreed that the test for possession was whether or not Mr. Hafizi had both knowledge of and control of the drugs and the ammunition.

[9] The defence did not dispute that the elements of knowledge and control were present with respect to the oxycodone therefore I found that Mr. Hafizi had both knowledge and control of the oxycodone and was guilty of possession of the oxycodone.

[10] Finally, counsel agreed that if I found that Mr. Hafizi was in possession of the cocaine then he would also be guilty of possession for the purposes of trafficking. Similarly, if I found him guilty of one of the counts of possession, then he would also be guilty of breach of probation.

[12] No viva voce evidence was called at the sentencing hearing, nor was there a pre-sentence report.

[13] Mr. Hafizi is 39 years of age and is married with 5 children. His youngest child is 2 years of age and his oldest is 18. Mr. Hafizi was born in Afghanistan and has lived in Canada since 1990.

a) a history of drug related convictions;

b) with larger quantities of cocaine in their possession and

c) who are not themselves addicted but are trafficking for their personal financial gain

typically receive longer sentences.

[23] To assist a trial judge in arriving at a “just and appropriate punishment,” Parliament has enacted s. 718.2 of the Criminal Code which sets out a number of aggravating or mitigating factors that a judge may consider to increase or decrease a sentence.

[24] I do not find that there were any factors that would serve to mitigate the length of sentence to be applied in this case.

[25] It is apparent from the evidence that Mr. Hafizi was engaged in a rather low level of trafficking from his vehicle and there was a lack of other usual indicia of drug trafficking such as debt lists, scales, and other similar items.

[26] These facts do not serve to mitigate the sentence that would be imposed but are factors that are necessary to consider when imposing sentence.

[27] There were some aggravating factors that included the number of cell phones found which may have been used for the purpose of trafficking as well as the possession of the brass knuckles with the dime bags of cocaine in the back floor of the car.

Judge

Counsel

Parties

Areas of Law