R. v. Banovac, 2016 ONSC 7166
CITATION: R. v. Banovac, 2016 ONSC 7166
COURT FILE NO.: CR-15-90000241
DATE: 20161118
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PAVAL BANOVAC
Accused
COUNSEL:
Sam Siew, for the Crown
Richard Elbirt, for the Accused
HEARD: September 12, 2016
B.A. ALLEN J.
DECISION ON SENTENCING
BACKGROUND
[1] Paval Banovac was charged with possession of heroin for the purpose of trafficking. The trial proceeded by judge-alone. At the start of trial Mr. Banovac pleaded guilty to simple possession of heroin. He was convicted on the charge of possession for the purpose of trafficking.
[2] Expert witness evidence at trial indicated that the amount of heroin seized comprised 1103 “hits” of the drug. The expert valued the drugs wholesale at $3,400 to $4,500 per ounce and estimated that, at an individual gram level at $240 to $350 per gram, the value would be $5,294 to $7,721. Mr. Banovac gave some of the heroin to his girlfriend and I found under the definition of trafficking under the Controlled Drugs and Substances Act that he trafficked heroin to his girlfriend.
[3] Mr. Banovac is an addict. However, the amount he purchased was in excess of an amount he would have had for personal use. The quantity was sufficient to sell amounts for a profit to allow him to purchase more drugs. So Mr. Banovac is both an addict and a trafficker in small quantities of heroin.
[4] As far as family and relationship matters are concerned Mr. Banovac has never been married and has no children. He has had several significant relationships with women.
THE LAW ON DRUG SENTENCING
[5] Courts have distinguished between levels of gravity of drug offences. Trafficking for a commercial purpose has attracted the greatest censure. This offence is regarded as an aggravating factor on sentencing. Lower end trafficking, for instance, solely to support an addiction, has tended to attract lighter sanction on the view that the offence is committed to support a habit which has come to be regarded as a type of disease: [R. v. Bui, 2004 ONCA 7201, at para. 2, (ON CA) and R. v. Woolcock, [2002] O.J. No. 4927, at para. 5, (Ont. C.A.)]. Aggravating factors on sentencing must be proven beyond a reasonable doubt: [R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762, at paras. 43 - 44, (S.C.C.)].
[6] The paramount principle in sentencing for trafficking in drugs is general deterrence. The sale of heroin even in small amounts even by first offenders who are addicts will attract penitentiary sentences outside the presence of exceptional circumstances: [R. v. Farizeh, [1994] O.J. 2624, at paras. 4 and 5, (Ont. C.A.); R. v. Hogan, 1976] O.J. No. 1087, at para. 3, (Ont. C.A.)].
AGGRAVATING AND MITIGATING CIRCUMSTANCES
[7] I received a detailed Pre-Sentence Report for Mr. Banovac dated September 1, 2016 and a synopsis of his criminal record. I also received a letter dated August 29, 2016 from Mr. Banovac’s sister, Susan Banovac. I considered these documents in crafting a suitable sentence.
Aggravating Circumstances
[8] The following are the aggravating factors I considered:
• Criminal record: Mr. Banovac has a substantial criminal record spanning some 20 years before the current charges dating back from 1994 to 2006. He received further charges in 2015, a year after the current charges. At the time of the 2015 charges, Mr. Banovac was under bail conditions for the current charges. There is an eight-year gap between the 2006 charges and the current charges. There is one previous drug conviction from 2002. Among his other charges are four failures to comply. He was also convicted of various property offences such as breaking and entering, theft, and possession of property obtained from crime. He has one conviction for assault.
• Sale of a dangerous drug: Heroin is one of the most dangerous drugs because it leads to devastating consequences to the user’s health, finances and family relationships. Trafficking also has the social effects of propagating addiction to others and of providing a stimulus for criminal activity.
• Absence of pro-social life circumstances: Mr. Banovac has few friends. He moved to Toronto to get away from his friends involved in a criminal lifestyle. He does not have a close relation with family members except his mother. He has had an on-again-off-again relationship with his sister over the years.
• Untried offences: Mr. Banovac was arrested on July 7, 2016 for breaching recognizance while he was on bail. He also has July 17 and 18, 2016 charges for two assaults, an assault with a weapon and two thefts under. He has not been tried for these charges. It has been found that untried offences can speak to an accused’s character and his conduct while released under a court order. [R. v. Edwards, 2001 ONCA 24105, [2001] O.J. No. 2582 (Ont. C.A.)]
[9] Mr. Banovac has expressed no remorse for possessing heroin for the purpose of trafficking in it. The fact that he did not plead guilty for cannot be considered an aggravating factor. He is entitled to maintain his innocence but he cannot gain the favour as a mitigating factor that a plea of guilty could bring.
[10] The Crown seeks a penitentiary sentence of 3 1/2 years with a period of probation together with ancillary orders. The defence seeks a reformatory sentence with a period of probation and does not dispute the imposition of ancillary orders.
Mitigating Factors
[11] The following are the mitigating factors I considered:
• Difficult family background: He had a dysfunctional and abusive family experience perpetrated by his father that caused him to leave home and become transient at an early age. He has a close relationship with his mother, a distant relationship with his father and an on and off relationship with his sister. He will live in his family home basement when he is released.
• Car accident injuries: Mr. Banovac sustained a back injury in a car accident in 2010 and became addicted to pain killers. When his doctor stopped the pain medication prescriptions, he began taking heroin to relieve the pain which led to his heroin addiction. He has been in receipt of Ontario disability benefits because of his injuries.
• Employment: He developed skills as a painter working with his father over the years. His sister indicates that when he is drug-free, he shows skill, proficiency and a strong work ethic.
• Guilty plea to lesser charge: Mr. Banovac pleaded guilty to the lesser charge of simple possession of heroin.
CASE AUTHORITIES
| CASE | OFFENCE | WEIGHT | SENTENCE |
|---|---|---|---|
| R. v. Farizeh[^1] | Trafficking heroin (3 cts) | 1.59 gr. | 4 years |
| R. v. Hamid[^2] | Possession of heroin for purpose of trafficking | 1.8 gr. | 3 years |
| R. v. Bahari[^3] | Trafficking heroin (4 cts) | 6.71 gr. | 6 years |
| R. v. Pimentel[^4] | Possession for purpose of trafficking | 5.1 gr. | 5 years |
| R. v. Dasilva[^5] | Possession for purpose of trafficking | 2.08 gr. | 3 years |
| R. v. Pham[^6] | Possession for purpose of trafficking | 5.49 gr. | 3 years |
DISPOSITION
[12] After considering the mitigating and aggravating factors and the case law I agree with the Crown’s position that a penitentiary sentence of 3 1/2 years is a fit sentence.
SENTENCE
[13] I will now pronounce sentence. Paval Banovac, will you please stand?
[14] Paval Banovac, you have been convicted on one count of possession of heroin for the purpose of trafficking. You stand to be sentenced on that offence.
[15] I sentence you to a penitentiary term of 3 1/2 years on count 1 on the indictment, possession of heroin for the purpose of trafficking. Your total term in custody will therefore be 3 1/2 years’ imprisonment.
[16] I make the following ancillary orders:
(a) There will be an order made under s. 109 of the Criminal Code which will prohibit you for life, commencing after release from custody, from owning, possessing or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.
(b) There will be an order authorizing the taking of such bodily substances as are necessary for the purposes of a forensic DNA analysis.
B.A. ALLEN J.
Released: November 18, 2016
CITATION: R. v. Banovac, 2016 ONSC 7166
COURT FILE NO.: CR-15-90000241
DATE: 20161118
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PAVAL BANOVAC
Accused
DECISION ON SENTENCING
B.A. ALLEN J.
Released: November 18, 2016
[^1]: [1994] O.J. No. 2624 (Ont. C.A.) [^2]: [1997] O.J. No. 3713 (Ont. C.A.) [^3]: [1994] O.J. No. 2625 (Ont. C.A.) [^4]: [2004] O.J. No. 5780 (Ont. S.C.J.) [^5]: [2004] O.J. No. 4808 (Ont. S.C.J.) [^6]: [2004, O.J. No. 1858 (Ont. S.C.J.)