Court File and Parties
CITATION: R. v. Golizadeh, 2023 ONSC 4686 COURT FILE NO.: CR-22-90000058-0000 DATE: 2023 0816
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – MOHAMMAD GOLIZADEH
Counsel: G. Roy, counsel for the Crown R. Barrs, counsel for Mr. Golizadeh
HEARD: June 21, and November 8, 2022, and March 2, and June 6, 2023
Reasons for Sentence
Introduction
1On June 21, 2022, Mohammad Golizadeh pleaded guilty before me to the offence of possessing 28 kilograms of opium for the purpose of trafficking. His sentencing hearing was adjourned several times for a variety of reasons, including the preparation of a Pre-Sentence Report (“PSR”). On June 6, 2023, the day that Mr. Golizadeh was originally to be sentenced, I agreed to his request for a brief adjournment to today’s date. These are my reasons for sentence.
2The Crown seeks a sentence of 7.5 years, submitting that the objectives of denunciation and deterrence demand a lengthy custodial sentence.
3The defence counters that given the mitigating factors in this case, a conditional sentence of 2 years less a day, followed by 3 years of probation, is a fit sentence.
4For the reasons set out below, I have concluded that 4 years in custody is the appropriate sentence.
Circumstances of the Offence
5On April 22, 2020, police stopped and searched the car Mr. Golizadeh was driving. They discovered 28 kilograms of opium. He admitted in his guilty plea that he possessed the opium for the purpose of trafficking.
6The police did not stop and search Mr. Golizadeh’s car randomly. Rather, the search stemmed from an investigation into suspected opium trafficking that began in February 2020. The investigators initially dealt with a man named Toor Jan Noorzai, who arranged to sell a sample of opium to an undercover officer. Mr. Noorzai directed the officer to call Mr. Golizadeh’s phone number. The officer did so and spoke with Mr. Golizadeh to arrange the details of the drug deal.
7On April 1, 2020, as arranged, Mr. Golizadeh put one kilogram of opium in the officer’s car and took $10,000 that the officer had placed in the trunk. His actions were caught on video.
8The officer then tried to arrange a bigger deal. However, he was told that the opium was in Quebec and the deal had to be delayed because of pandemic restrictions at the border.
9On April 22, 2020, a tracker the police had placed on Mr. Golizadeh’s car showed him driving towards Quebec. Surveillance officers then saw him meet with a man named Hans Lansreth. Police observed Mr. Golizadeh pull his car up beside Mr. Lansreth’s car. Mr. Golizadeh then moved a blue hockey bag to the trunk of his car. This transaction was also captured on video.
10Police followed Mr. Golizadeh to Belleville, then stopped his car and arrested him. They searched the blue hockey bag he had just picked up and found 28 kilograms of opium. It was packaged in the same manner as the opium from April 1.
11The police searched Mr. Golizadeh’s apartment and found some money and one kilogram of opium.
12Officers also searched Mr. Lansreth’s residence. They found $2,000 of the buy money from April 1. In his garage, they found 1,970 kilograms of opium, which was packaged in the same manner as the opium from April 1.
13Mr. Lansreth pleaded guilty in Quebec and received an effective sentence of 15 years.
Circumstances of Mr. Golizadeh
14Mr. Golizadeh is 53 years old. He was born in Iran and has six siblings. He described his childhood as “very tough”. His family was poor, and his father was not responsible. The children were often left to fend for themselves.
15When he was 13 years old, he was sent to Japan to train in mixed martial arts, judo, and wrestling. After 18 months, he returned to Iran. He then began working to help his family with finances while still attending school, ultimately graduating from high school.
16At the age of 18, Mr. Golizadeh was forced to join the Iranian military. He described the two years he served as “very hard” and told the author of the PSR that he saw “terrible things”. He was discharged from the army after he was shot in the arm. It took 16 screws to repair his arm. He still has pain and mobility issues stemming from the injury.
17Mr. Golizadeh immigrated to Canada in 1993. He quickly got a job delivering flyers and then worked a variety of odd jobs. By 1996 he had saved enough money to open a fast-food business with his brother. They eventually opened five locations. However, his brother became ill, and they were forced to close. Mr. Golizadeh went back to working odd jobs until he had enough to buy an interest in another fast-food franchise in 2017. Over the last couple years, Mr. Golizadeh has had a conflict with the co-owner over his share in the business. If Mr. Golizadeh goes to jail, it is likely that he will lose his interest in the venture.
18Mr. Golizadeh is close with his siblings and has strong family support. His mother came to Canada in 2010 and he lives with her. His mother has health issues and depends on him both financially and for her basic care. If Mr. Golizadeh goes to jail, it will adversely impact his elderly mother.
19Mr. Golizadeh is depressed and anxious because of these charges. He is particularly worried about his mother and how she will cope, and the reality that he will likely lose his business. Mr. Golizadeh appeared before me several times. He was always exceedingly polite and presented as being quite sad and beaten down. Having seen Mr. Golizadeh several times, and from the PSR and submissions of his counsel, it is clear to me that the entire criminal process has been difficult for Mr. Golizadeh. It is also clear to me that he is remorseful for his offending.
20Mr. Golizadeh began using opium to help him deal with pain stemming from a back injury. Within a few months he was using up to 10 grams a day. He became reliant on opium and withdrew from his family and friends. Since his arrest, he has slowly stopped using and has been sober for years. He is open to substance abuse counselling. He is also receptive to counselling for emotional issues and trauma.
Sentencing Principles and Objectives
21As noted in R. v. Lacasse, 2015 SCC 64, at para. 58, the “determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.”
22Section 718 of the Criminal Code, R.S.C., 1985, c. C-46, provides that the “fundamental purpose of sentencing is to protect society and to contribute... to respect for the law and the maintenance of a just, peaceful, and safe society.” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in ss. 718 (a) to (f), including denunciation, general and specific deterrence, separation of the offender from society, and rehabilitation.
23Section 718.1 of the Criminal Code sets out the fundamental principle of sentencing, which is that any sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
24The Criminal Code lists several other principles to guide sentencing judges. The parity principle is set out in s. 718.2 (b) and provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” Given the highly individualized sentencing process, however, the sentencing principle of parity remains secondary to proportionality: R. v. Parranto, 2021 SCC 46, at para. 38. Sentences imposed for offences of the same type will not always be identical: R. v. Mann, 2010 ONCA 342, at para. 17; Lacasse, at paras. 53-58.
25The restraint principle is reflected in both ss. 718.2(d) and (e). As the Ontario Court of Appeal confirmed in R. v. Hamilton, at para. 96, the principle of restraint means that the sentencing court should seek to impose the least intrusive sentence and the lowest quantum that will achieve the overall purpose of being an appropriate and just sanction. The principle of restraint is particularly important when sentencing a first offender such as Mr. Golizadeh: R. v. Priest, at paras. 17-20; R. v. Nassri, 2015 ONCA 316, at paras. 30-31; R. v. Sousa, 2023 ONCA 100, at para. 37; R. v. Batisse, 2009 ONCA 114, at para. 32.
26The various sentencing objectives and principles can often conflict with one another, in that maximizing the denunciatory or deterrent effect of the sentence may be contrary to the rehabilitation of the offender and the principle of restraint, and vice versa. To resolve this conflict, the competing objectives and principles must be balanced in a way that respects the fundamental principle of proportionality.
27In addition to the sentencing purposes and principles outlined in s. 718 of the Criminal Code, s. 10 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, applies when sentencing offenders for drug offences. This section provides that “the fundamental purpose of any sentence for an offence” under the Act is to “contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and the community.”
28Pursuant to s. 742.1 of the Criminal Code, with some exceptions, if a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, and the offence does not attract a mandatory minimum sentence, the court may impose a conditional sentence if satisfied that allowing the offender to serve their sentence in the community does not endanger the safety of the community and is consistent with the fundamental purpose and principles of sentencing.
29Since sentencing is highly individualized, the determination of a just and appropriate sentence requires the court to assess the aggravating and mitigating factors related to both the offence and the offender. Such an assessment is also mandated by s. 718.2 (a) of the Criminal Code, which states that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. I turn now to the aggravating and mitigating factors in the present case.
Aggravating Factors
30While not the “king-pin”, Mr. Golizadeh was part of a sophisticated trafficking scheme.
31His involvement was not limited to a single incident. In addition to the offence on April 22 when he possessed 28 kilograms of opium, he also admitted to other criminal activity. On April 1, he arranged and facilitated a drug deal with the undercover officer. He also had one kilogram of opium at his apartment. His offending was ongoing and not isolated or impulsive.
32The large amount of opium involved is highly aggravating. Mr. Golizadeh possessed 28 kilograms of opium. This is a significant amount of a Schedule 1 drug. Opium is addictive and destructive. While it is not on par with heroin, it is a dangerous drug that would have been distributed in our community.
Mitigating Factors
33Mr. Golizadeh is a first offender. He has never been in trouble with the law before. This offence is out of character.
34Mr. Golizadeh started working to help support his family when he was a young teenager. After immigrating to Canada, he started work almost immediately, delivering flyers and doing odd jobs. He has worked hard to build his own business. His solid work history shows Mr. Golizadeh has the capacity to be a pro-social and contributing member of society. This bodes well for his rehabilitation and ability to move forward from this incident.
35I note that Mr. Golizadeh has ongoing issues with the co-owner of his business. Indeed, one of the reasons the sentencing was delayed was to give him the opportunity to try to work that out. Unfortunately, the issues with the co-owner have not yet been resolved. The sentence he receives for this offence will make it difficult for him to continue to deal with the issues and he is likely to lose the interest he has in the venture.
36Mr. Golizadeh has been living with his elderly mother. She is in poor health and relies on him heavily. The care that Mr. Golizadeh has shown his elderly mother highlights his pro-social character.
37Mr. Golizadeh has been out on release for over three years. He fully complied with the terms of his bail. This supports that the offence was out of character for him and that he will be able to reintegrate into society well upon his release from custody.
38He has also given back to the community in his time on bail by volunteering with the FB Soccer Club youth team. Mr. Golizadeh completed 128 hours volunteer work at the club. A letter filed on his behalf noted that his “dedication and enthusiasm” were “truly “commendable.” The letter also described his “exceptional work ethic”.
39Mr. Golizadeh committed the offence when he was addicted to opium. After his release he weaned himself off the drug and is now clean. He is receptive to taking substance abuse counselling. He is also open to other counselling. The author of the PSR noted that he would benefit from counselling for emotional issues and trauma.
40Mr. Golizadeh took responsibility for his actions from the start. He gave a full statement to the police upon arrest. He made it clear early on that he intended to plead guilty.
41His plea of guilt saved the court time and resources at a time when the Superior Court of Justice in Toronto is dealing with significant backlog. While it is true that the case against him was strong, I consider his plea to be a highly mitigating factor in all the circumstances.
42Mr. Golizadeh has expressed how sorry he is for his actions. He told the author of the PSR that he regretted his actions and that he was disappointed in himself for his criminal behaviour. Having seen Mr. Golizadeh, I have no doubt that he is profoundly and genuinely remorseful.
Analysis
43There are relatively few sentencing cases dealing with opium offences, and even fewer dealing with the sole offence of possession for the purpose.
44In R. v. Abolmolouk, [1987] O.J. No. 926 (C.A.), the offender imported 805 grams of opium. He was a 40-year-old first offender. He received a sentence of 7 years and appealed. The court allowed the appeal and (taking into consideration his pretrial custody of 6 months) reduced the sentence to 4 years.
45In R. v. Aghabeigi, 2004 BCCA 263, the offender had been convicted after a jury trial of importing 9.6 kilograms of opium and sentenced to 3 years. The sentence was upheld on appeal. She was a first-time offender. She also had health issues and was suffering major depression.
46In R. v. Rashidi-Alavije, [2006] O.J. No. 4015 (SCJ); aff’d 2007 ONCA 712, following a jury trial, the offender was found guilty of importing 5.9 kilograms of opium. He received a sentence of 5.5 years in custody. He was 36 years old at the time of his trial. He was a first offender and was not an addict.
47In R. v. Sajjadi, [2008] O.J. No. 5910 (SCJ), the offender pleaded guilty to importing 1.7 kilograms of opium. He testified that he was an opium addict who was using approximately 9 grams of opium a day. He received a sentence of 2 years less a day (before taking into consideration his pre-trial custody).
48In R. v. Pirouz, 2009 BCCA 51, the offender received a conditional sentence of 2 years less a day for importing 3.144 kilograms of opium (and for a possessing an additional 2.263 kilograms of opium in his residence). The offender had pleaded guilty. He and his family had immigrated to Canada from Iran as Convention refugees. In Iran he had been imprisoned and tortured and he suffered from post-traumatic stress disorder. He had been addicted at the time of the offence but had taken significant steps toward his rehabilitation by the time of sentencing. The conditional sentence was upheld on appeal.
49In R. v. Ayati-Ghaffari and Chegini, 2013 ONSC 4999, the court considered the appropriate sentence for two offenders who had been found guilty following a jury trial of importing opium three times. The amount of opium imported was described as “huge”, approximately 122 kilograms in total. Both men were first offenders with positive potential. However, both were motivated by profit. It was a “well-planned scheme”. Mr. Ayati-Ghaffari received a global sentence of 14 years and Mr. Chegini received a sentence of 12 years.
50In R. v. Henareh, 2015 BCSC 2455, the offender received a sentence of 3 years for possession for the purpose of trafficking of 14 kilograms of opium. After an unsuccessful Charter application to exclude the evidence, he invited the court to find him guilty. The offender was a 46-year-old first offender, who had immigrated from Iran with his family because of oppression they faced. He was not an addict.
51In the related case of R. v. Ravandi, [2015] B.C.J. No. 2537 (B.C.S.C.), the court sentenced Mr. Henareh’s co-accused to 4.5 years for importing 17.95 kilograms of opium. The offender was 36 and had no criminal record. But it was a sophisticated scheme that was driven by greed, not addiction.
52In R. v. Rajaei-Mehrabadi, 2016 ONSC 3362, the offender was found guilty after a jury trial of importing 6.45 kilograms of opium. He was sentenced to 4.5 years in custody. He was 35 years at the time of his offence. His family left Iran because of religious persecution. He had a good pre-sentence report. He was not an opium user or addict.
53In R. v. Bayrami-Asl, 2017 ONSC 2055, the court sentenced the offender to 5 years for importing 3.9 kilograms of opium. He had been found guilty after a jury trial. He was a first offender. The offender was a principal organizer in the importing scheme, not a mere courier. He was not a user or addicted to opium.
54In R. v. Hasankhani, 2018 ONSC 3669, the offender received a sentence of 4 years for importing 5 kilograms of opium. He was found guilty after a jury trial. He was a 39-year-old first offender with good rehabilitative prospects.
55In R. v. Sarjoghian, 2018 ONSC 3142, the court sentenced the offender to 4 years and 6 months in custody for importing 4.6 kilograms of opium. He had been convicted following a jury trial. He was a 47-year-old first offender. He was not an addict.
56In R. v. Nagendran and Poobalasingam, 2018 NSPC 38, the court sentenced Mr. Nagendran to 2 years (less pre-sentence custody) for possessing 5 kilograms of opium for the purpose of trafficking. His co-defendant, Mr. Poobalasingam, received a sentence of 3 years for importing the 5 kilograms (2 years concurrent for possession for the purpose). Both offenders were found guilty after a trial. They were first offenders. They were driven by profit, not addiction. It was a relatively sophisticated scheme. The Crown appealed Mr. Poobalasingam’s sentence. The appellate court, however, found the sentence to be fit and declined to interfere: R. v. Poobalasingam, 2019 NSCA 19.
57In R. v. Safroni, 2019 ONSC 3022, the offender was found guilty by a jury of importing approximately 3 kilograms of opium. She was 28 years old at the time of the offence and had a 12-year-old daughter who would be impacted by the sentence. She had no criminal record. The court determined that a fit sentence was 2 years (less any pre-sentence custody).
58In R. v. Dejdar, 2019 ONSC 5606, the offender had been found guilty after trial of conspiracy to import opium, importing opium and trafficking opium (approximately 1.8 kilograms). The offender had a significant related record. He was serving a 12-year sentence for importing. He had also imported the opium while on parole for importing. His criminal history was so aggravating that the court would have sentenced him to 8 to 9 years but for the fact that he still had several years left in his other sentence. Given that, the court sentenced him to 5 years in custody. The sentence was upheld on appeal: R. v. Dejdar, 2021 ONCA 88.
59In R. v. Verma, 2023 ONSC, the offender was convicted by a jury of importing 13.739 kilograms of opium. He was a first offender. He was not the principle of the scheme, but a courier. However, he was motivated by greed, not addiction. He received a sentence of 7 years.
60Finally, Mr. Lansreth received a sentence of 15 years in custody for having approximately two tons of opium.
61Most of the cases set out above deal with importing opium. Importing opium is particularly serious, as the substance is not native to Canada. Without the importer, the harm that flows from opium would not exist in our country. There is no suggestion that Mr. Golizadeh had any involvement in importing the opium into the country. That said, the importing cases are helpful in assessing what the appropriate sentence should be for Mr. Golizadeh for possessing a large quantity of opium for the purpose of trafficking.
62What emerges from a review of the above cases is that the range for importing large quantities of opium seems to be between 3 to 7 years in custody: see Ravandi, at para. 33; Rajaei-Mehrabadi, at para. 23. Of course, ranges are "guidelines, not hard and fast rules": R. v. Friesen, 2020 SCC 9, at para. 37. In some opium cases, particularly where the offenders were driven by addiction, courts have gone below the range.
63What also emerges from a review of the cases is that the paramount sentencing objectives for possessing large quantities of opium for the purpose of trafficking are denunciation and deterrence. It must be said in no uncertain terms that trafficking in opium is unacceptable. Moreover, a message must be sent to those who might be tempted to traffic in opium. This message is to be communicated by the imposition of exemplary sentences.
64That is not to say, however, that the sentencing objective of rehabilitation is irrelevant when sentencing an offender for opium offences. Especially when, as in Mr. Golizadeh’s case, it seems clear that the offence was linked to addiction. Even when denunciation and deterrence must be given paramountcy, the sentencing judge retains the discretion to assign significant weight to other factors, such as rehabilitation, in giving effect to the fundamental principle of proportionality: Friesen, at para. 104; R. v. Rayo, 2018 QCCA 824, at paras. 103, 107-108.
65Mr. Golizadeh possessed 28 kilograms of opium for the purpose of trafficking. He was part of a relatively sophisticated drug scheme, where he played an ongoing role. Given the aggravating factors in this case, I find that the conditional sentence sought by the defence is not available for two reasons. First, I have concluded that the appropriate sentence in this case exceeds 2 years. Second, a conditional sentence would fail to give sufficient voice to the pressing need for denunciation and deterrence.
66On the other hand, in my view the 7.5 years sought by the Crown does not sufficiently consider the sentencing objective of rehabilitation or the principle of restraint.
67Mr. Golizadeh is a first offender. He pleaded guilty, which is highly mitigating given the backlog faced by the court. He did not act out of greed or malice, but because of his addiction. He has stopped using opium and is open to counselling to ensure that he never abuses the substance again. He is also open to other counselling. He has faced many challenges in his life yet has persevered. He has shown his capacity to be pro-social. He is genuinely remorseful. There is every reason to believe that he can move forward from this incident in a positive way and that he can be fully rehabilitated.
68Considering the aggravating and mitigating factors, and the relevant sentencing principles and objectives, in my view the appropriate sentence is 4 years. This is a lenient sentence considering the large amount of opium and other aggravating factors in this case. However, I have concluded that it is a fit, fair, and proportionate sentence. A 4-year penitentiary sentence for this first offender gives primacy to the sentencing objectives of denunciation and deterrence, while at the same time recognizing the objective of rehabilitation and the principle of restraint.
Ancillary Orders
Weapons Prohibition Order
69A weapons prohibition pursuant to s. 109 of the Criminal Code applies. Pursuant to s. 109(2)(a)(ii), Mr. Golizadeh is prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition, and explosive substance for a period of 10 years.
70Pursuant to s. 109(2)(b), he is further prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.
DNA Order
71Possession for the purpose of trafficking is a secondary designated offence. The Crown seeks a DNA order. I am satisfied that it is in the best interests of the administration of justice to make this order, considering the circumstances of the offence, and the minimal impact that the order would have on Mr. Golizadeh’s privacy and security of the person: s. 487.051(3).
Victim Surcharge
72Given the date of the offence, the victim surcharge set out in s. 737(1) of the Criminal Code applies. However, Mr. Golizadeh will be serving a 4-year sentence. While serving a sentence alone does not mean that the surcharge does not apply, there are other factors that militate towards waiving the surcharge in this case. His elderly mother depends on him financially. Mr. Golizadeh will likely lose his business because of his jail sentence. When released, he will be starting over again from scratch. Looking at all the circumstances, in my view it is appropriate to waive the surcharge.
Justice Heather McArthur
Released: August 16, 2023