R. v. SARJOGHIAN, 2018 ONSC 3142

COURT FILE NO.: CRIM J(F) 1670/16

DATE: 2018 05 22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

HASSAN SARJOGHIAN

Defendant

Maryse Nassar, for the Crown

Trevin David, for the Defendant

HEARD: March 9, 2018 in Brampton

EMERY J.

REASONS FOR SENTENCE

1On July 6, 2017, a jury found Hassan Sarjoghian guilty of importing a controlled substance into Canada, contrary to section 6(1) of the Controlled Drugs and Substance Act. A pre-sentence report was ordered. Sentencing submissions were ultimately heard on March 9, 2018. Mr. Sarjoghian was also given the opportunity to make a statement to the court under section 726 of the Criminal Code at that time.

Circumstances of the Offence

2Mr. Sarjoghian is a forty seven year old gentleman. He was born in Tehran, Iran. He immigrated to Canada in the year 2000 with his wife Azedeh Kabiri, and is now a Canadian citizen.

3In Iran, Mr. Sarjoghian studied engineering management. He achieved the equivalent of a bachelor’s degree from university. He started his own company selling door handles, knobs, and other construction accessories. Apparently, that business was very successful.

4In Iran, Mr. Sarjoghian sold his business for the equivalent of $150,000 (Canadian). He owned two houses, one of which he sold in 2014 for the equivalent of $400,000. According to Mr. Sarjoghian, he still owns one house and one cottage in Iran.

5Mr. Sarjoghian and his wife have been married for eighteen years. They have two children, who were five and thirteen at the time he committed the offence for which he has been convicted. The children are now seven and fifteen years old.

6Mr. Sarjoghian gave evidence at trial that he has never been involved in the drug trade. He states he has never been involved in a criminal activity. He has no criminal record in either Canada or Iran. He states that in the past eleven years he has only encountered the law while in Canada when he received two parking tickets.

7In Canada, Mr.Sarjoghian was at first a wood worker and a cabinet maker. He started his own business, HS Design Carpentering. At the time of trial, he was employed as a real estate agent.

8Mr. Sarjoghian obtained his real estate license in Ontario in August 2014. He became employed at Homelife/Bayview Realty as an agent toward the end of 2014. He had not yet closed HS Design Carpentering. He still owned some equipment for wood working, including nail guns and compressors.

9Mr. Sarjoghian and his wife purchased a home at 25 Goulding Avenue in Toronto in 2011. They sold the house on Goulding Avenue in August 2015 for $1,000,055, from which they received net proceeds of $490,000. They ultimately purchased another property at 38 Idleswift Drive in Vaughan.

10Ms. Kabiri is a French teacher at a Montessori school. In 2015, Mr. Sarjoghian earned $66,000 as a real estate agent and Ms. Kabiri earned approximately $34,000 as a teacher, for a joint household income of approximately $100,000.

11Mr. Sarjoghian gave evidence at trial that he was not financially motivated to commit the offence with which he was charged.

12The events leading up to the charge started with the trip Mr. Sarjoghian took to visit his mother in Iran. He left Toronto for Iran on May 24, 2015. He explained that his mother had been ill. He states that since it had been a few years since he had been to see her, he decided to take the trip. He also intended to have his dentist in Iran check his teeth, and he intended to take the opportunity while in Iran to inspect his house and cottage.

13Mr. Sarjoghian booked his return flight from Tehran to Toronto via Istanbul for June 10, 2015.

14While in Tehran, Mr. Sarjoghian’s dentist performed a root canal on one tooth, and filled another tooth. Mr. Sarjoghian told the court that the cost for the dental work was incredibly different there than having the same work done in Canada. He explained that in Canada the work would have cost between $800 and $1,200, where it cost him between $90 and $100 there. Mr. Sarjoghian filed an affidavit from his dentist, Dr. Heyday as evidence that he provided this dental work to Mr. Sarjoghian while in Iran.

15Mr. Sarjoghian also purchased an air compressor while he was in Iran. He shipped the air compressor back to Canada along with a suitcase of clothes his mother insisted he take back, as well as a kettle and a rice cooker he had purchased as a gift for his wife. Since he was already travelling with his own suitcase and the suitcase his mother had given to him, Mr. Sarjoghian explained that he made the decision to ship the second suitcase and the other items back to Canada as cargo over not shipping them at all.

16According to Mr. Sarjoghian, the shipping cost for sending cargo by air was determined by weight. He learned that the price would be the same for units of 50 kilograms or less. Mr. Sarjoghian determined that he had additional capacity to ship something else besides the suitcase of clothes, the kettle and rice cooker as they only totalled 28 to 30 kilograms between them. He therefore purchased the air compressor over the telephone from an old friend in Tehran who worked in the local bazaar. He says he purchased the compressor because he was familiar with the brand.

17Mr. Sarjoghian purchased this air compressor on June 8, 2015. Mr. Sarjoghian stated in evidence that his brother paid for this air compressor, as Mr. Sarjoghian no longer had a bank account in Tehran. The air compressor cost 168,000 toomans, which he understands to be the equivalent of $55. He told the court that he could not use credit cards in Iran, and he could not wire money from Canada.

18Mr. Sarjoghian explained that he purchased the air compressor for work on the house he was selling in Canada. He would save money by purchasing it in Iran. It would be inexpensive to ship with the other items he was bringing back to Canada because it would simply use up the excess weight capacity he was already paying for.

19Mr. Sarjoghian stated that he would not have purchased the air compressor if it was the only item he was to ship back. He states that he had no plans for it at all. This statement was inconsistent with his other evidence.

20Mr. Sarjoghian testified that he never saw the air compressor before he arranged to have it shipped as cargo. He states that he had no knowledge it contained opium when it was shipped from Tehran to Toronto.

21Mr. Sarjoghian attended at the Tehran airport to provide instructions for shipping the air compressor along with the spray gun and tube that would connect to the main unit.

22When he went to the airport in Tehran to board his flight back to Toronto, he took a cab to the airport with the suitcase and other items to add to the shipping container. He gave the other items to an employee at the shipping desk. These items were weighed to see if they met the weight requirements for the articles he was sending as cargo. The air compressor was then included in the goods weighed for shipping.

23Mr. Sarjoghian stated he had nothing to do with wrapping the goods together to form the shipping unit. He just filled out the shipping form that he would need to pick up the shipment in Toronto.

24When Mr. Sarjoghian went to pick up the articles at the Swissjet cargo office at Pearson International Airport a number of days later, he gave an employee at the receiving desk his shipping documents to claim those articles. The shipping clerk told him that morning that the shipment had not yet been cleared by customs.

25Mr. Sarjoghian went to take delivery of the shipment on June 15, 2017. He was told at the Swissjet desk to pick up those items at the back of the building from the loading dock. At the back of the building, RCMP officers carried out a “controlled delivery” of the articles Mr. Sarjoghian had shipped from Iran. These articles included the air compressor in which CBSA officers had detected the quantity of opium suspended by metallic arms inside the tank. Once Mr. Sarjoghian had taken possession of the air compressor and loaded it along with the other articles into his vehicle, he was arrested and charged.

Legal Perimeters for Sentence

26To import opium is to import a substance included in Schedule I of the CDSA. Mr. Sarjoghian has been found guilty of importing opium weighing 4,678 grams of opium, or 4.6 kilograms into Canada.

27A conviction for importing a controlled substance having a weight greater than one kilogram under section 6(3)(a.1) of the CDSA is punishable by imprisonment for life, with a minimum term of imprisonment for two years.

Respective Positions of the Crown and Defence

28The Crown seeks a custodial sentence for Mr. Sarjoghian of five years. This sentence is requested because of the seriousness of the offence, the quantity of the controlled substance that was imported, and the fact that opium was the controlled substance that Mr. Sarjoghian has been found guilty of importing.

29The Crown also seeks an order under section 109 of the Criminal Code that Mr. Sarjoghian be prohibited from possessing any firearm or weapon, or any ammunition or explosive substance for ten years. The Crown also seeks an order that Mr. Sarjoghian give a DNA sample under section 487.0551.

30Mr. David made submissions that Mr. Sarjoghian should receive a sentence in the range of three years to three and a half years imprisonment, taking into account the appropriate balancing of sentencing principles and interests, as well as additional mitigating circumstances that have arisen since his conviction.

Principles of Sentencing

31The Criminal Code sets out the applicable principles of sentencing in section 718:

PURPOSE AND PRINCIPLES OF SENTENCING

Purpose

718. The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other 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, and acknowledgment of the harm done to victims or to the community.

Case Law

32The framework for sentencing an offender who has been found guilty of importing opium starts with the judgment of Justice Lacourcière in R. v. Abolmolouk, [1987] O.J. No. 926 (Ont C.A.). In that judgment, Justice Lacourcière set out the nature of the narcotic known as opium as follows,

“Staff-Sergeant Brown testified 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. The Final Report of the Commission of Inquiry into the Non-Medical Use of Drugs (the LeDain Commission) notes, at p. 300, that the major active constituent of opium, namely morphine, was first isolated in 1803 and that raw opium is about ten percent morphine by weight. Opium is a physically addictive drug. According to the Addiction Research Foundation’s publication Drugs and Drug Abuse, A Reference Text (1983), at p. 477, “opium has a dependence liability similar to that of morphine”. 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.

In his reasons for sentence, the learned trial judge appears to have equated opium to hashish when he said:

...Staff-Sergeant Brown in his evidence compared to some extent, opium with hashish, in terms of its value in the drug culture. He equated the price of opium as being slightly higher than hashish.

I find it rather unusual that if it carried the same type of danger to society as does its derivative - which is heroin - that he would have expressed different terms relating to this particular drug. For that reason, and also for the quantity involved, I would not have imposed a sentence much higher than that of a person bringing hashish into the country, and I probably would have gone into the range of 3 years. That probably would be taking into account as well, the fact that the accused has spent 6 months in pre-trial custody. So that you could be looking at about 3 to 4 years.

33The court in Abolmolouk was concerned with a 40 year old man at the time of the trial who had no criminal record. The court was told on sentencing that he was a good family man, and highly respected in the Iranian business community. He had been convicted of importing 805 grams of opium, being less than 1 kilogram.

34Having regard to all of the circumstances in Abolmolouk, the Court of Appeal varied the sentence given by the trial judge from a term of 7 years imprisonment to a sentence of 4 years imprisonment.

35Over the next 30 years, sentencing cases for importing opium have established a range of 2 to 7 years of imprisonment for offenders convicted of importing between 1 and 14 kilograms.

36In R. v. Rashidi-Alavije, [2006] OJ No. 4015 (SCJ), the court sentenced the offender to imprisonment for five and a half years for importing 5.9 kilograms of opium. The offender was an Iranian born man who was 36 years old at the time of trial. He had no criminal record. He was not an addict.

37The Crown in Rashidi-Alavije made the submission that as the offender was not an addicted importer, he was not a weak or vulnerable person. This argument lends itself to the question of whether there was any evidence of enticement to importing opium that he could not resist. Instead, Justice Murray described how the offender had made his own travel arrangements, and had acquired the suitcase he brought home with him from Europe in which he had concealed the drugs in a sophisticated manner.

38Justice Murray found that the decision in Abolmolouk was an important guide on sentencing. He took into account the needs for denunciation and deterrence when he determined that five and a half years of imprisonment was the appropriate sentence to impose.

39The court in R. v. Sajjadi [2008] O.J. No. 5910 considered the appropriate sentence for a 33 year old man who pleaded guilty to bringing 1.7 kilograms of opium into Canada when he returned from Iran. He testified that he was an opium addict who was using approximately 9 grams of opium a day. Having regard to all mitigating and aggravating factors, the need for denunciation and deterrence, and the opportunity for the offender to rehabilitate himself, Justice Durno sentenced the offender to 2 years less a day.

40Mr. David relies upon two cases from the courts in British Columbia as persuasive authority to support his request for a sentence in the 3 year range.

41In R. v. Aghabeigi 2004 BCCA 263, [2004] BCJ No. 1035 (BCCA) the B.C. Court of Appeal declined to interfere with the sentence of 3 years of imprisonment. The trial judge gave a female offender who had been convicted of one count of importing opium, and one count of possession of opium for the purpose of trafficking. The offender had been found guilty of importing 9.6 kilograms of opium. She was 41 years old at the time of the appeal. She was a first time offender, and a non-user of the drugs she imported.

42The second case, R. v. Henareh, [2015] BCJ No. 2880, is a decision of the Supreme Court of British Columbia. In Henareh, a 46 year old Iranian born man had been convicted of importing 14 kilograms of opium. He was a non-user of opium, and an employee of the co-accused (which co-accused was sentenced to 4.5 years of imprisonment on each count to be served concurrently in R. v. Ravandi, [2015] BCJ No. 2537). In taking all aggravating and mitigating factors into account, the nature of the controlled substance the quantity involved, and the offender’s family circumstances, the court in Henareh sentenced the offender to 3 years of imprisonment.

43There are two recent Ontario cases that counsel brought to my attention to complete my review. In the first, Justice Dawson sentenced the offender in R. v. Rajaei-Mehrabadi, [2016] O.J. No. 2655 to a prison sentence of four and a half years for importing 6.5 kilograms of opium into Canada. The offender in that case was a first time offender who was 42 years old. On reviewing the case law in Rajaei-Mehrabadi, Justice Dawson made the following observations on the range of sentencing in cases where the offender had been found guilty of importing more than 2 kilograms of opium:

22In 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).

23Based 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.

24In 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.

44R. v. Bayrami-Asl, [2017] OJ No. 1647 SCJ is the other recent case from Ontario. In that case, the offender had been convicted by a jury of one count of importing 3.9 kilograms of opium. On sentencing, LeMay J. found the 43 year old offender was a principal organizer of the importing scheme, and not a courier deserving of a lesser sentence. Justice LeMay noted the circumstances and related sentences given out by the court in Rashidi-Alavije and in Rajaei-Mehrabadi, and determined that, as a principal, the offender before him should receive a sentence “slightly longer” than the sentence imposed in Rajaei-Mehrabadi. Justice LeMay found the appropriate sentence for the offender in Bayrami-Asi would be five years imprisonment.

Appropriate Sentence

45In view of the cases and the factors that the courts have considered to determine a fit sentence, an offender in Mr. Sarjoghian’s circumstances could receive a sentence in the mid to high range of four to seven years. However, I am urged to consider certain mitigating factors and the particular circumstance of his wife’s health before determining a sentence that is proportionate and fair.

46I had the benefit of reading the pre-sentence report prepared on Mr. Sarjoghian before hearing submissions of counsel at the sentencing hearing. Mr. Sarjoghian and his wife, Ms. Kabiri immigrated to Canada together. They initially encountered issues related to language, employment and cultural differences which they overcame together. They have adapted and integrated into the community in which they live, despite the fact they settled in Canada with no other family here to support them.

47Mr. Sarjoghian told the probation officer who prepared the pre-sentence report that his life consists of working in the field of real estate and investment opportunities, along with raising his children. He told the probation officer that his family “is everything and I will do anything to make them happy and comfortable, they are my whole world”.

48Apparently, Mr. Sarjoghian has not told his children about this serious matter. He told the probation officer who prepared the pre-sentence report that he “feels bad about the offence”.

49Mr. Sarjoghian told the probation officer that he earned $25,000 in his first year as a real estate agent in 2014. In his second year, he earned $66,000, in 2015. In 2016, he earned $35,000.

50In 2015, Mr. Sarjoghian and Ms. Kabiri purchased their current home for $1,184,000. There is currently $850,000 remaining on the mortgage against it. He states that it is now worth $2.4 million. He told the probation officer preparing the pre-sentence report that he has bought and sold properties and made approximately $200,000 a year from his investments.

51I have noticed that many of the reported decisions on sentencing for importing opium incidentally or coincidentally relate to persons who were either born or raised in Iran. This observation could suggest a historical or cultural connection with the use of opium by people from Iran. This is not necessarily a unique observation: Justice Lacourcière in Abolmolouk noted of the appellant in that case that :

He became familiar with opium in pre-revolution Iran where it was prescribed for elderly people with heart conditions, according to a defence witness, and allegedly used by the appellant’s father when he was over 70 years old. The appellant, according to witnesses, has a good reputation as a family man and is said to be highly respected amongst reputable members of the Iranian business community.

52Neither Mr. Sarjoghian or his counsel made any reference to, or submission about this connection as a mitigating factor. As a result, I have not given it any consideration in these reasons.

53I consider the fact that Mr. Sarjoghian is reportedly a good husband, and a good father to his two children as a mitigating factor. However, providing for the family, and having to service a large mortgage on a limited household income may have led to his decision to generate income by importing the opium for which he has been convicted.

54The jury heard evidence that Mr. Sarjoghian had trouble patriating money from Iran to Canada. He had reported $66,000 of income from job as a real estate agent, some of it generated from his own purchase of the house on Idleswift. In the pre-sentence report, he told the probation officer he would “do anything” for his family. Unfortunately, that included making an unwise decision that has now lead to his conviction.

55Mr. Sarjoghian is a first time offender. This also is a mitigating factor. The ordeal of the trial, and the sentence he must serve on conviction will no doubt have a deterrent effect on him. The sentence by its nature and duration will also reflect the principle of denunciation.

56The fact that Mr. Sarjoghian constructed the story of purchasing the air compressor, sight unseen, from a friend to fill up cargo weight, and to have his brother pay for the compressor is an aggravating factor on sentence. The jury clearly found it unbelievable. Therefore, Mr. Sarjoghian’s testimony about those facts was untruthful. If his brother, who I understand is in the construction business in Iran, had any evidence to give about the purchase of the air compressor, let alone any role in securing the unit he should have attended before the court to give evidence about it.

57When I weigh the factors and consider the cases that must guide me in deciding a fit sentence, the circumstances in Rajaei-Mehrabadi most closely resemble the facts in this case.

58In Rajaei-Mehabadi, the offender received a sentence of imprisonment totalling four and a half years. Like the offender in Rajaei-Mehrabadi, Mr. Sarjoghian is a first time offender who is in his forties. There is no evidence that Mr. Sarjoghian is a principal organizer of an importing scheme within a larger organization to warrant a “slightly longer” sentence than someone who was essentially a courier, or in this case, an importer.

59There is one more factor that Mr. David has asked me to consider on sentencing.

60The sentencing hearing scheduled for December 12, 2017 was adjourned to February 8, 2018 because Ms. Kabiri was diagnosed with cancer after Mr. Sarjoghian had been convicted of the charge. On receiving submissions for sentence, Mr. David tendered a letter from Ms. Kabiri which has been marked as an exhibit. In addition to speaking of Mr. Sarjoghian’s character and the stress the trial has had on them as a couple, she states:

As I mentioned above, because of so many stress and pressure during the last 2 years, I’ve found out that I have Cancer. So, I should go through the surgery and treatments without my husband and with 2 kids. I cannot even imagine how I will be able to do that. I do really need the support of my husband during this difficult time.”

61Mr. David relies on the decision of the Court of Quebec in R. v. Stanberry as authority for this court to reduce the sentence of an offender because of “collateral consequences.” In Stanberry, the female accused had pleaded guilty of importing 2.35 grams of cocaine when she landed at Trudeau International Airport in Montreal upon her return from a trip to St. Maarten.

62Ms. Stanberry was a single parent of two young children, aged 7 and 3 respectively. One of the children has challenges with hearing and speaking. There was evidence before the court of the impact the length of the sentence given to the offender would have on the family.

63Justice Healy of the Quebec Court considered the doctrine of “collateral consequences” affirmed by the Supreme Court of Canada in R. v. Pham, 2008 SCC 31, [2008] 2 S.C.R. 163. This doctrine permits a court to take into account the collateral consequences of the sentence to be imposed on the lives of those people it will also effect. The court made it clear that the consequences of sentencing in this respect are not to be considered as a mitigating factor. Instead, they are to be used to arrive at a just and proportionate sentence particular to the “personal circumstances of the offender.”

64In this case, Mr. Sarjoghian has filed no medical reports or other documentation showing the nature of his wife’s cancer. The court was not informed about the nature or duration of the treatment plan. While the court has great empathy with any person and the family of anyone fighting cancer, little if any proof has been provided to this court to reduce the severity of the sentence that would otherwise be imposed under the circumstances. There was no evidence given for Mr. Sarjoghian about the collateral consequences his wife and children will experience if he is sentenced without regard to those consequences similar to the evidence in the Stanberry case (see paragraphs 18 and 19).

65If submissions on collateral consequences were a basis to seek a reduction in sentence without the appropriate evidence or proof, every other case would provide the opportunity to request a reduction for that reason. This would detract from the application of the principles of sentencing that are fundamental to the law of sentencing under the Criminal Code and on the authorities. This would lead to sentencing on an ad hoc basis, without certainty or consistency.

66It is for these reasons that I am not reducing the sentence this court is imposing on Mr. Sarjoghian because of collateral consequences.

67Upon applying the principles and factors particular to Mr. Sarjoghian and the circumstances of the offence, I am sentencing Mr. Sarjoghian to a term of 4 years and six months imprisonment.

68I also make the following orders:

(a) Mr. Sarjoghian is prohibited from possessing weapons, firearms, ammunition and explosive materials for a period of ten years; and

(b) He shall provide a DNA sample forthwith for the federal database.

69Mr. Sarjoghian shall also pay a victim surcharge of $200. He has asked for time to pay, and he is therefore given until November 22, 2018 to make that payment.