COURT FILE NO.: CR- 334/17
DATE: 20180612
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
N. Cooper for the Crown
- and -
MOHAMMAD HASANKHANI
D. Basile for the Defence
HEARD: May 31, 2018
REASONS FOR SENTENCE
Baltman J.
Introduction
[1] Mr. Hasankhani has been found guilty by a jury of importing five kilograms of opium. He is now before me for sentencing.
Circumstances of the Offence
[2] On March 12, 2016, Mr. Hasankhani was on his way back from Iran when he was referred to the secondary inspection at Pearson airport. Border agents discovered approximately five kilograms of opium hidden underneath the linings of two suitcases that he brought with him, with an estimated street value of between $110,000 and $152,000.
[3] At his trial Mr. Hasankhani testified that he was visiting family in Iran, and brought the suitcases back as a favour for a friend who lives in Tehran. He claimed he did not know they concealed opium. By its verdict the jury clearly rejected his testimony.
Circumstances of the Offender
[4] Mr. Hasankhani is 39 years old and was born and raised in Iran. He immigrated to Canada in 2000 for a more stable political environment, and became a Canadian citizen in 2006. His immediate and extended family continue to reside in Iran. He has no criminal record.
[5] Mr. Hasankhani appeared to have integrated well within Canada. After taking English classes he worked as a truck driver for nine years, from 2003-2012. He then began work as an unlicensed plumber, employed by A1 Plumbing, under the license of a good family friend, Mr. Reza Jahanbakhsh.
[6] Shortly after he was charged in this matter Mr. Hasankhani began attending classes at the Ontario Real Estate Association (OREA), with the goal of becoming a licensed real estate agent. Although he has nearly completed all the necessary courses and exam requirements, because of this conviction he will be ineligible to obtain a license. His alternative plan is to continue working as a plumber. His employer, Mr. Jahanbakhsh, has expressed complete trust in Mr. Hasankhani’s abilities and stated he will support him through any incarceration and employ him following his release.
[7] Mr. Hasankhani has also been in a serious personal relationship over the past 15 months with Ms. Shahrzad Yousefi, who is aware of this court matter. He has integrated well into her family. Despite her shock over this offence she is committed to the relationship and they plan to marry upon his release. Her brother, Mr. Shahram Yousefi, is also close to Mr. Hasankhani, and continues to strongly support him despite this conviction.
[8] The pre-sentence report identifies two other personal friends, both aware of this offence, who speak highly of Mr. Hasankhani, noting him to have been a kind, hard-working and thoughtful friend.
[9] Since his release on bail on March 15, 2016, Mr. Hasankhani has been fully compliant with his bail conditions.
Positions of Crown and Defence:
[10] The Crown seeks a sentence of 5.5 years imprisonment. The Defence submits that this case warrants a sentence of 3.5 years.
Submissions and Analysis
[11] Both parties agree that the primary sentencing objectives are denunciation and deterrence, both general and specific. They further agree that Mr. Hasankhani’s role in this scheme was as a courier, not a principal or overseer.
[12] There are relatively few cases dealing with sentencing for the importation of opium. Counsel reviewed a handful of cases from Ontario and two from British Columbia, including R. v. Rajaei-Mehrabadi, [2016] O.J. No. 2655; R. v. Rashidi-Alavijie, [2007] O.J. No. 4005 (C.A.); R. v. Bayrami-Asl, [2017] O.J. No. 1647; R. v. Aghabeigi, 2004 BCCA 263, and R. v. Salamat Ravandi, 2005 BCSC 2167.
[13] In Rajaei-Mehrabadi Dawson J., based on his review of largely the same case law, concluded that the range of sentence for the importation of multiple kilograms of opium for commercial drug trafficking is three to seven years (para. 23). He went on to say, at para. 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. [emphasis added]
[14] In that case, which involved 6.5 kilos, Dawson J. imposed a sentence of 4.5 years. The case of Bayrami-Asl, involving 3.9 kilos, resulted in a sentence of 5 years; however there Le May J. found that the offender was a principal, not a mere courier.
[15] As for appellate pronouncements, in Rashidi-Alavijie our Court of Appeal upheld a sentence of five and a half years for the importation of 5.9 kilograms of opium, while in Aghabeigi the British Columbia Court of Appeal upheld a three year sentence for the importation of 9.6 kilograms of opium, despite noting the sentence to be “lenient”.
[16] The aggravating factors here include the substantial amount of opium and that it was imported for commercial profit. The mitigating features are the significant support network for the offender – which include his fiancée and longstanding employer - and many years of gainful employment. In addition, Mr. Hasankhani has been fully compliant with the terms of his bail and the PSR report is very positive. Finally, I take into account that Mr. Hasankhani has no criminal record, while noting Dawson J.’s comment at para. 29 of Rajaei-Mehrabadi that that is “virtually a prerequisite to working as a drug courier. Those are the people who must be deterred”.
[17] In my view the correct balancing of the gravity of the offence and the circumstances of the offender is satisfied here by a sentence of four years.
[18] In addition, Mr. Hasankhani will be subject to the following collateral orders, pursuant to s. 109(2)(a) and 109(2)(b) for 10 years and life respectively, along with an order for a DNA sample.
Baltman J.
Released: June 12, 2018
COURT FILE NO.: CR- 334/17
DATE: 20180612
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
MOHAMMAD HASANKHANI
REASONS FOR SENTENCE
Baltman J.
Released: June 12, 2018