COURT FILE NO.: CRIMJ(F) 1289/11 DATE: 20160524
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Sam Weinstock, for the Crown
- and -
BABAK RAJAEI-MEHRABADI Rachael Lichtman, for the Defence
HEARD: April 18, 2016 at Brampton
REASONS FOR SENTENCE
Justice F. Dawson
[1] Babak Rajaei-Mehrabadi was convicted by a jury on February 19, 2016 of importing 6.45 kilograms of opium into Canada. The issue today is the imposition of a fit sentence.
The Facts
[2] On April 13, 2010 the accused returned to Canada on a flight from Iran via Amsterdam. He testified that he had been visiting family in Iran.
[3] The accused was referred for a secondary customs examination. During that examination he was found to be in possession of eight hardcover books. Examination revealed that the front and back covers of the books contained thin sheets of opium that had been papered over with the books’ coverings. It was ultimately determined that the accused was importing 6.45 kilograms of opium into Canada. Expert evidence valued the opium at between $141,900 if sold at the kilogram level, and $193,000 if sold at the gram level.
[4] The accused testified that he was bringing the books back to Canada as a favour for an Iranian man he had previously met in Canada whom he visited while in Iran. He said he did not know they concealed opium. Clearly, that testimony was rejected by the jury.
[5] There is no evidence connecting the accused to any criminal or drug distribution organization. He denies that he is himself a user of opium. I do note, however, that when Crown counsel was preparing for trial he located a prescription container labelled “Methadone” in the accused’s luggage. That was somehow overlooked by the members of the RCMP who had been in possession of the accused’s luggage since shortly after his arrest. Possession of methadone could constitute circumstantial evidence of addiction to or use of narcotics.
[6] That evidence was not disclosed to the accused until the eve of trial and was not tendered by Crown counsel before the jury. When I inquired about its relevance to the issue of sentencing Crown counsel advised me that it appeared to be a foreign prescription and that the substance had not been analysed. Counsel for the accused urged me to disregard it and submitted that I should proceed on the basis that there is no evidence that the accused was addicted to or a user of opium. In view of those submissions I have proceeded accordingly.
[7] It is common ground that the quantity of opium found is inconsistent with importation for personal use.
The Positions of the Parties
[8] The Crown seeks a sentence of six and a half years, less credit for a brief period of pretrial custody, and various ancillary orders. Crown counsel emphasizes the significant quantity and value of the opium as being consistent only with commercial drug trafficking. Crown counsel also emphasizes the fact that opium is a Schedule I substance pursuant to the Controlled Drugs and Substances Act, 1996, Chap. 19 (CDSA). Schedule 1 contains some of the most dangerous or harmful drugs and substances.
[9] Counsel for the accused seeks a sentence of three and a half years less credit for pretrial custody. Counsel emphasizes that the accused has no criminal record and has been a productive contributing member of the community.
Background of the Accused
[10] The accused is now 42 years of age. He was 35 years old at the time of the offence. He was born in Iran on May 5, 1974. He achieved a grade 12 education in Iran. He served in the Iranian military for two and a half years commencing at the age of 17. After his time in the military he was hospitalized for depression. The presentence report indicates that the accused has continued to suffer from periods of depression and anxiety ever since.
[11] The accused and his family are members of the Bahá’i faith. Subsequent to the Iranian revolution in 1979 they were persecuted. Their home was destroyed and the family’s savings were confiscated by the government.
[12] In 1999 the accused and his wife immigrated to Canada. They have two daughters aged nine and a half and six and a half years. The accused has become a Canadian citizen. He worked steadily as a self-employed painter until late 2015 when he began to receive social assistance from Ontario Works. This change was the result of anxiety and depression and his concern about taking on new painting contracts as his trial date approached. The accused’s wife is employed as a dental hygienist.
[13] The presentence report is generally favourable. The accused is described as family oriented and involved with his children. He is being treated by his family doctor for anxiety and depression. His treatment includes the use of medical marijuana.
The Nature of Opium and the Range of Sentence
[14] There are relatively few cases dealing with sentencing for the importation of opium. I have been referred to five authorities; three from Ontario and two from British Columbia. Based on these few authorities counsel agree that sentences in British Columbia seem to be shorter than those imposed in Ontario. I will refer briefly to each of the cases I have been provided with. I will start with the Ontario authorities.
[15] In R. v. Abolmolouk, [1987] O.J. No. 926 (C.A.) the court allowed an appeal from a sentence of seven years for the importation of 805 grams of opium by a 40 year old appellant who had no criminal record. Taking note of the fact that the appellant had spent six months in pretrial custody the Court of Appeal reduced the sentence to four years.
[16] I observe that the Abolmolouk case is almost 30 years old. It was decided in the immediate aftermath of R. v. Smith, [1987] 1 S.C.R. 1045, in which the Supreme Court of Canada struck down the minimum sentence of seven years for importation of a narcotic as unconstitutional. It is, nonetheless, a guiding authority. I note that the quantity of opium imported in that case was substantially less than in this case.
[17] Of considerable assistance is the factual information about opium that is set out at paras. 6 and 7 of Justice Lacourciere’s judgment in Abolmolouk. The evidence in that case included that while opium is a hard narcotic which can be converted to morphine and heroin, it is only one-tenth the strength of heroin. Opium is a physically addictive drug which has a “dependence liability” similar to morphine. However, the modes of consumption of opium are typically by smoking it or eating it. Those modes of consumption produce a lower dependence liability than does the injection of morphine or heroin. Opium was described as having limited marketability in Canada except in certain ethnic groups. I observe that the accused in most of the cases I have been referred to are of Iranian background. In Abdolmolouk the court noted that opium cannot be equated to hashish even though its street value, at least as of the date of that case, was only slightly higher than hashish.
[18] In the absence of any contradictory or more current evidence I find these comments to be of assistance in assessing the gravity of the offence of importing opium. I also take into account that there is no evidence in the present case that the opium was being refined into morphine or heroin. That would be a seriously aggravating circumstance that is not present in this case.
[19] In R. v. Rashidi-Alavijie, 2007 ONCA 712, the court upheld a sentence of five and a half years imposed by J. Murray J. (see [2006] O.J. No. 4015) for the importation of 5.9 kilograms of opium. The appellant in that case was 36 years old, had no criminal record and was not a user of opium. That case bears significant similarities to the case at bar.
[20] In R. v. Gurm, [2009] O.J. No. 5007 (S.C.J.), my colleague Justice Wein imposed a sentence of two years less one day to be followed by a period of probation. The weight of the opium imported in that case is not stated but the street value is specified as being between $10,000 and $17,000. There were indications the accused was a user. A para. 6 Justice Wein found that the quantity imported was suggestive of only small scale distribution. There were also immigration considerations in that case which may have influenced the court to impose a sentence of less than two years.
[21] Defence counsel has referred me to two British Columbia cases. In R. v. Aghabeigi, 2004 BCCA 263, [2004] B.C.J. No. 1035 (C.A.) the court upheld a three year sentence imposed at trial for the importation of 9.6 kilograms of opium hidden in the lining of suitcases. The court described the sentence as lenient but found no basis to interfere with the trial judge’s sentence. The accused in that case was a 41 year old woman with no criminal record who suffered from depression and some other health problems. The court did refer to two other cases that supported a sentence in the range of six to seven years for such an offence. This case appears to me to establish the bottom of the range for the importation of multiple kilograms of opium at three years.
[22] In R. v. Salamat Ravandi, [2015] B.C.J. No. 2537 (B.C.S.C.), B.M. Davies J. sentenced a 36 year old accused with no criminal record to four and a half years for the importation of 17.95 kilograms of opium. The Crown in that case suggested a range of five to seven years. Davies J. reviewed a number of cases, including some British Columbia cases I have not referred to, and held that the appropriate range of sentence was three to seven years and “not the much higher range appropriate for sentencing for the importation of heroin or cocaine” (para. 33).
[23] Based on my review of the cases, and relying in particular on the factual information cited at paras. 6 and 7 of Abolmolouk, I agree that the range of sentence for the importation of multiple kilograms of opium for commercial drug trafficking is three to seven years. I would also adopt the British Columbia Court of Appeal’s description of a three year sentence for the importation of over nine kilograms in Aghabeigi as lenient.
[24] In my view, the quantity involved in the importation and whether the accused is addicted or a user, are of critical importance. If the evidence supports a finding of commercial trafficking on a significant scale a midrange penitentiary sentence will usually be required in order to deter and denounce the importation of an addictive substance. It is well known that addictions can lead to many other social costs and often to the commission of other crimes. However, the fact that opium is not as addictive as some of the other hard drugs and has a smaller market, are relevant factors affecting the determination of an appropriate range of sentence.
[25] I would add that were there any evidence that the opium imported in this case was being used to make morphine or heroin the range of sentence would extend considerably higher than seven years.
The Sentence to be Imposed in this Case
[26] My determination of a fit sentence for Mr. Rajaei-Mehrabadi must be governed by my assessment of the gravity of the offence and the degree of responsibility of the offender. I have already described the gravity of the offence. It is serious because it involved the importation of an addictive substance for commercial purposes. However, it is less serious than the importation of a similar amount of a more addictive drug, such as cocaine.
[27] The accused maintains that he is not a user. There is no evidence he was a principal and I conclude he was likely a paid courier. General deterrence and denunciation must be emphasized in these circumstances.
[28] I agree with Crown counsel’s submission that the quantity and value of the opium are aggravating features in this case.
[29] The fact that the accused has no criminal record is a mitigating factor. I take that into account. However, I note that the absence of a criminal record is virtually a prerequisite to working as a drug courier. Those are the people who must be deterred.
[30] I also take into account that the accused has good prospects for rehabilitation. He has the support of his wife and is involved in family life. He has always, until recently, been employed and contributed to the support of his family. I am confident he will do so in the future.
[31] His history of anxiety and depression is also something I take into account. This is likely to make any sentence I impose upon him more impactful. Being away from his family while serving his sentence will be more difficult due to those conditions.
[32] While not an aggravating factor, I note the absence of remorse which, if present, would be a significant mitigating factor in this case. I also take that into account.
[33] Balancing all of the considerations I have referred to, and taking the cases cited to me and the principles of sentencing set out in Part XIII of the Criminal Code and s. 10 of the CDSA into account, I conclude a sentence of four and a half years in the penitentiary is appropriate. This is a significant sentence of imprisonment for a first time offender with good prospects for rehabilitation. As a midrange penitentiary sentence it is surely adequate to denounce the accused’s misconduct and to serve as a general deterrent to others. From this must be deducted credit for 32 days of pretrial custody for which I give credit of 48 days at a ratio of one and a half days for each day of pretrial detention.
[34] Accordingly, I impose a sentence of four years four months and 22 days.
[35] The accused is ordered to provide a sample of his DNA for the convicted offender’s data bank. I note that this is a secondary designated offence. The accused made no submissions against the making of the DNA order. I have taken the provisions of s. 487.051 into account. The importation of narcotics is often associated with other criminal activity. In terms of the impact of the order on privacy and security, I note the considerable protection contained in the governing legislation. Balancing these factors favours making the order.
[36] There will also be a weapons and firearms prohibition order pursuant to s. 109 of the Criminal Code. To the extent such order is discretionary it will be for 10 years.
[37] The minimum victim surcharge of $200 is also imposed.
Justice F. Dawson