R. v. Heidari

2013 BCSC 252 R. v. Heidari IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Heidari, 2013 BCSC 252 Date: 20130131 Docket: 25927 Registry: Vancouver Regina v. Amir-Ali Heidari Before: The Honourable Mr. Justice Greyell Oral Reasons for Sentence In Chambers Counsel for the Crown: M. Loda Counsel for the Accused: D. G. Milburn Place and Date of Trial/Hearing: Vancouver, B.C. November 22, January 28 and January 31, 2013 Place and Date of Judgment: Vancouver, B.C. January 31, 2013 [1] THE COURT: Mr. Heidari is charged with and has pled guilty to possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA], and for unlawfully possessing another person's driver's licence and social insurance card, contrary to s. 56.1 of the Criminal Code, R.S.C. 1985, c. C-46 [Code]. The offences occurred on January 19, 2011. [2] On that date, Mr. Heidari was observed in three separate meetings with suspected drug users. The police stopped his vehicle and conducted a search. No drugs were found in the car but he was found to have $775.00 and two cellphones in the centre console. The cellphones were seized. Within the next four hours, the police observed his phone receive 16 calls from persons police say have a connection to drug use. Within the next week, the cellphone disclosed 71 missed calls, indicative to the police that the accused was involved in a dial-a-dope operation. [3] The stopping of Mr. Heidari's vehicle on January 19, 2011 was not a coincidence. The police had been conducting surveillance on him since August 2010. The police observed on at least ten different occasions between August and late December 2010 Mr. Heidari engaging in hand-in-hand transactions with known drug users. [4] On the day of his arrest, the police obtained a search warrant and searched the home of his parents, where Mr. Heidari resides. The police discovered a safe in his bedroom, which contained several baggies of crack cocaine, scales, a medicine bottle, scissors and $885.00 in cash. The police also seized 33.6 grams of rock cocaine with a street value of $2,695.00 and cash in the amount of $2,000.00 in this search. [5] Mr. Heidari is now 23 years old. He was 21 years of age at the time of the offences. He has two previous convictions under the Code for fraud under $5,000.00 and for unauthorized use of a credit card. Those offences were committed on June 30, 2009 in North Vancouver. Mr. Heidari was given a suspended sentence and put on probation for 12 months. [6] Following Mr. Heidari's arrest on the current charges and while on conditional release, he was charged with and pled guilty to being in breach of his conditions on four occasions. [7] Mr. Heidari was charged with and pled guilty to being in breach of his conditions on two occasions, one of which he was found in possession of a cell phone in June 2011. He was sentenced as a result to 19 days in jail. He served 11 of those days. [8] Mr. Heidari has been charged for two further alleged breaches of the conditions of his sentence. On August 18, 2012, he was found in a vehicle outside his curfew hours. On the following day he was not found at home during a curfew check. He has pled not guilty to those charges and both matters are now set for trial. Mr. Heidari's counsel, Mr. Milburn, argues that Mr. Heidari has good defences to those charges. On the first occasion, Mr. Heidari says he was sick and on his way to the hospital, which he subsequently attended. On the second occasion, he was actually at home in the yard, unbeknownst to his mother who had spoken to the police. [9] I raise this issue because Mr. Heidari's conduct subsequent to his arrest and release on conditions on the current charges is of great concern both to the Crown and to this Court in the imposition of a just and appropriate sentence. [10] I turn to the position of the Crown. The Crown seeks jail term of 12 months on Count 1and a jail term of three months on Counts 2 and 3, both terms to run concurrently. The Crown also seeks various ancillary orders dealing with forfeiture of the goods and equipment seized, a weapons prohibition pursuant to s. 109 of the Code and a DNA order pursuant to s. 487.051 of the Code. [11] The Crown relies on a number of decisions: R. v. Tran, 2007 BCCA 613 (Tran); R. v. Sandher, 2008 BCSC 263; R. v. Johnson, 2008 BCSC 1162 (Johnson); R. v. Sangha (22 July 2008), Vancouver 24045 (B.C.S.C.); R. v. Alibhai, 2008 BCSC 1549 (Alibhai); R. v. Ali, 2010 BCCA 4 (Ali); R. v. Laurila, 2010 BCCA 535; and R. v. Van Der Hoek, 2011 BCSC 1656. [12] The Crown also relies on R. v. Kennedy, 2012 BCCA 433, although that case involved counts of break and enter. This case is distinguishable from the present case. [13] The principles of sentencing as they relate to dial-a-dope operations were set out in the well-known decision of Mr. Justice Henderson, R. v. Franklin, 2001 BCSC 706 (Franklin). Henderson J. discussed the nature of dial-a-dope operations, the harms of this criminal conduct for the community and the objectives of sentencing engaged by this kind of criminal conduct: [20] First, it makes these drugs, and I refer primarily to cocaine and heroin, more readily accessible throughout the Lower Mainland than they have been in the past. It makes them accessible with less effort on the part of the purchasers. Purchasers, and here I think of adolescents, who might feel intimidated at the thought of seeking out a drug dealer in the recesses of the Main and Hastings area may nevertheless, in the relative comfort and safety of suburban locations, easily purchase cocaine and heroin as long as Dial-A-Dope operators are willing to oblige them. [21] I infer also that Dial-A-Dope operations are profitable. There is no evidence before me as to how much a typical Dial-A-Dope dealer makes in the course of a day or a week but, having sat as the trial judge on a number of these cases, I am aware that it is a profitable way to make easy money. ... [47] It is my view that this is the sort of offence where general deterrence has an impact. One does not enter into a Dial-A-Dope operation impulsively or spontaneously. It is necessary to obtain a supplier, to outfit oneself with a pager and a cell phone and a vehicle, and to make sure the word gets around. It is a calculated decision to engage in a particular type of business. It is reasonable to think that those who are considering that decision will take into account the likely penalty they would receive upon conviction. In other words, general deterrence is a genuine consideration in cases of this sort. [48] It is also my view that general deterrence is entitled to very considerable weight when imposing sentence for trafficking in hard drugs. When I weigh the need for general and specific deterrence, the need to protect the public, the need to rehabilitate this offender, and the need to denounce his conduct; and when I take into account the injunction in the Criminal Code that incarceration should not be imposed unless and until all other alternate forms of sentencing have been considered, I find myself of the view that a term of true imprisonment is necessary in this case. [14] These principles were affirmed in Tran where the British Columbia Court of Appeal upheld a jail sentence of nine months. The offender had been 28 years of age with no criminal record and no known addiction problem which led to the criminal activity. The sentencing judge had relied upon Franklin. Madam Justice Saunders, delivering the oral judgment for the court, disagreed with the defence's submission that the trial judge had erred in failing to recognize the availability of a conditional sentence: 6 ... I respectfully do not agree. It appears to me that the judge accurately captured the theme, as he referred to it, of the many cases he listed. There is a line, fairly long now, of cases from this Court in which, absent an out of the ordinary circumstance, a custodial sentence has been found to be a fit sentence on a conviction of trafficking in a hard drug in what is referred to as a "dial-a-dope" scheme, where the offender is not an addict and has participated simply for profit. ... [Emphasis added.] [15] Of course, each case must be decided on its own unique facts. However, in order to impose a conditional sentence, the court must find there are special circumstances that are, to use Saunders J. A.'s words, "out of the ordinary". Otherwise, the sentencing objectives of deterrence and denunciation direct that a just sentence is incarceration in dial-a-dope cases. [16] The cases relied upon by the Crown are important examples of the application of these principles in dial-a-dope cases. [17] In Alibhai, Mr. Justice Ehrcke declined to order a conditional sentence. The offender in that case had failed to establish any special circumstances that would suggest a term of imprisonment would be unjust. He was 37 years of age with an extensive criminal record and no addiction problem. He engaged in the dial-a-dope scheme for profit. [18] In the Ali (2008 BCSC 657), the trial judge, Madam Justice Morrison noted that while the accused had no criminal record, he was a mature businessman without any known addiction problem. He was not a youth of 19 or 22. Rather, he was an adult with adult responsibilities. Mr. Ali's dial-a-dope operation had involved a cell phone and a rental car. The police gave evidence that this was a strategy for dealers to avoid forfeiture of their own vehicle. Morrison J. further noted the offender had tried to evade the police when they attempted to apprehend him. She noted the trial had been time-consuming and expensive, as it had required the appearance of seven RCMP officers to give evidence. She found Mr. Ali had not displayed any remorse for his criminal conduct. She accordingly declined to grant a conditional sentence. Her decision was affirmed by the Court of Appeal. [19] In Johnson, the accused had been selling both cocaine and ecstasy. Mr. Justice Barrow found he was not addicted to either, at least seriously. He had pursued the dial-a-dope enterprise for the purpose of profit. [20] As stated, the Crown relies on the principles of law set out in these cases and argues the court should take into account the following aggravating factors. First, Mr. Heidari was involved in a dial-a-dope operation. He was trafficking in cocaine, which constitutes a serious offence under the CDSA. The police found significant amount of cocaine when they searched his bedroom as well as a significant amount of cash. Finally, he had run his dial-a-dope operation from the family home, thus involving his parents and breaching their trust. [21] The defence argues the circumstances in this case make a conditional sentence order of 18 months appropriate. In particular, the defence points to Mr. Heidari's young age, his addiction problem, the fact that he has sought treatment for that problem and that has taken steps to turn his life around. [22] The defence relies on a number of authorities involving charges arising from dial-a-dope operations where courts of this province had given conditional sentences: R. v. Kozma, 2000 BCCA 440; R. v. Wong, 2001 BCCA 491; R. v. Chang, 2002 BCCA 644; R. v. Kreutziger, 2005 BCCA 231; R. v. Schneider, 2007 BCCA 560; R. v. Sidhu, 2007 BCSC 876 (Sidhu); R. v. Osborne, 2007 BCSC 1840; R. v. Charlie, 2008 BCCA 44; and R. v. Cheung, 2008 BCSC 1834. [23] The fundamental purpose of sentencing is 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. Section 718 of the Code sets out a number of objectives that a sentencing judge must consider. These objectives are to denounce unlawful conduct, to deter the offender and other persons from committing offences, to separate offenders from society where necessary, to assist in rehabilitating offenders, to provide reparations for harm done to victims and the community and to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and the community. [24] A fundamental principle of sentencing is that a sentence must be proportionate both to the gravity of the offence and the degree of responsibility of the offender: Code, s. 718.1 [25] A sentencing judge is also required under s. 718.2 to increase or reduce a sentence to account for relevant aggravating or mitigating circumstances relating to the offence or to the offender. [26] In this case, there are a number of aggravating circumstances. Mr. Heidari, for a number of months at least (we will never know for how long) had engaged in an activity that destroys the physical and mental health of vulnerable members of our society, paticularly young people. Dial-a-dope operations are notorious for attracting crime and violence to communities. I adopt Henderson J.'s reasons in Franklin. [27] I am also particularly concerned by the fact Mr. Heidari has been involved with the criminal justice system both before and after the offences that are the subject of this sentencing decision. I have also taken into account the breach of his family's trust by using his parents' home to conduct his trafficking business. [28] Let me turn to the mitigating circumstances. [29] At the time of the offence, Mr. Heidari was 21 years old. I was advised by both his counsel and through a report from his probation officer that he became addicted to OxyContin following an injury in a motor vehicle accident in 2010. That addiction and the cost of maintaining it led him to become involved in a dial-a-dope operation. The addiction was apparently costing him $150.00 a day. Mr. Heidari apparently stopped using OxyContin upon his arrest for the current offence. He subsequently relapsed. However, the evidence before the court is that he has now taken positive steps to shake his habit. He is regularly taking methadone and attending appointments at a clinic in Burnaby. He has also joined Alcoholics Anonymous. [30] Mr. Heidari entered early guilty pleas. Hence, the court's time and the expense of a trial have been saved. More importantly, by entering those pleas, he acknowledged at an early stage his responsibility. [31] During the course of the sentencing proceedings Mr. Heidari addressed the court. He told the court he was sorry for what he had done, that he sincerely regretted his conduct and that he recognized the harm his conduct has created for the community. He said he recognized that his conduct had destroyed lives and he promised this Court that he had learned his lesson and that he would never repeat such conduct. While these words may be easy to say during a sentencing proceeding, I accept that he is sincere in making those comments. Mr. Heidari has taken steps to overcome his addiction after the offence. He has changed the persons he associates with. He will complete his schooling this spring and then begin a work experience program leading ultimately to the attainment of a gas appliance certificate. In short, he has taken steps in a positive manner to move his life forward. [32] In this respect, this case differs from a number of the cases referred to by Crown. In those cases, the offender had been older with no underlying addiction issue and no display of remorse. [33] Clearly, deterrence and denunciation are significant sentencing principles in this case and, absent unique circumstances, require the imposition of an incarceration sentence. [34] The Code sets out the requirements for imposing a conditional sentence. The sentence involved must be less than two years. Serving the sentence in the community must not endanger the safety of the community. A conditional sentence must be consistent with the fundamental purpose and principles of sentencing. [35] In this case, the Crown seeks a sentence of 12 months' imprisonment. Accordingly, the first requirement is met. [36] The accused was released on terms following his arrest. He was subsequently charged for breaching those terms. He pleaded guilty to two breaches and he served time in jail. As noted, there are two charges outstanding relating to breaches of August 18 and 19, 2011. His counsel has put forward an explanation for his conduct on those occasions. Those matters are set for trial. While I am troubled by the fact he has been charged, I make no finding in regard to those issues. [37] Mr. Heidari's counsel says Mr. Heidari experienced a wake-up call after he actually spent time in jail. I accept that to be a fact. Mr. Heidari is now and has been since his release regularly checked for obeying his curfew three times a week. There have been no further proven breaches since July 2011. I am of the view, as stated, that Mr. Heidari has in fact learned from his experience in jail and that he regrets that experience. [38] The real question is whether the conditional sentence would be consistent with the general purposes of sentencing which engage the principles of deterrence and denunciation. [39] In my view, the circumstances in this case make a conditional sentence order a just sentence. Time spent in jail will, in my view, limit this young man's progression in his chosen career, in which he has taken steps to advance himself. As stated, he has taken positive steps to deal with the addiction problem he faced. [40] Jail would not, in my view, be consistent with the overall principles of sentencing. Any concern that a conditional sentence may appear to be more lenient than a jail term can be alleviated by the length and terms of the conditional sentence. As stated by Mr. Justice Smart in Sidhu at para. 43: The more serious the offence and the more aggravating the circumstances surrounding the commission of the offence or the circumstances of the offender, the more deterrence and denunciation dominate the balancing of the purposes that a sentence seeks to balance. We know that a conditional sentence does have a deterrent and denunciatory effect when it is imposed with strict conditions amounting to house arrest. ... [41] Mr. Heidari, would you stand, sir. [42] I am going to impose a sentence of 18 months. The first 12 months of that sentence will be under house arrest. [43] The terms are that you will keep the peace and be of good behaviour. [44] You shall appear before the court when you are required to do so. [45] You will report in person to a conditional sentence supervisor -- I am going to suggest that be 4:00 p.m. this afternoon. Do counsel have any submission on that? [46] MR. MILBURN: No, My Lord. [47] THE COURT: Crown? [48] MS. LODA: No, thank you. [49] THE COURT: No. By no later than four o'clock today and that would be at 100, 233 West 1st Street in North Vancouver; am I correct in that? That is the address contained in the presentence report. [50] MR. MILBURN: Yes, I believe that would be appropriate. Often, the first attendance in on Cordova Street Probation and then it is assigned out from there, but in this case, there has been a bail supervisor involved for a lengthy period of time in the presentence report. So I am of the view that would be appropriate. [51] MS. LODA: I think so, too, My Lord. [52] THE COURT: Very well, and you will report to that person, Mr. Heidari, as and when you are directed to report. [53] You will remain in the jurisdiction of the court unless written approval to go outside that jurisdiction is obtained from your supervisor or the court. [54] You shall notify your supervisor of any change in your address and you shall promptly notify your supervisor of any change in employment or occupation. [55] You shall reside at 764 East Keith Road, North Vancouver, the home of your parents. Do I have that address correct? [56] MR. MILBURN: Yes, My Lord. [57] THE COURT: You will not change that residence without prior permission from your supervisor. [58] Now, I want you to listen carefully to me, Mr. Heidari, because you must understand this last -- this next condition and that is you will remain within your residence or on the lot upon which it is situated at all times for the first 12 months of this sentence, that is, until January 30, 2014. [59] You shall remain in your residence or on the property except with the written permission of your supervisor to be outside of your residence or property within the hours specified in such written permission. [60] Should you receive such written permission, you are to carry a copy of the permission at all times on your person and are to present it to any peace officer who requests to see it. [61] Such permission is to be given by your supervisor only for compelling personal, family, schooling, or employment reasons. Now, I, given the fact you have been involved with breaches, want to ask you whether you fully understand the terms of this condition? [62] THE ACCUSED: Yes. [63] THE COURT: You are permitted to be out of your residence and off the property when travelling directly to and returning home directly from your place of employment or while in the course of such employment. [64] You shall provide your supervisor with any proof or verification of such employment that he or she may request. In other words, you remain on your property for six [sic] months except for work, school, compelling personal or family reasons. [65] You will present yourself at the door of your residence to any peace officer or your supervisor for the purpose of determining your compliance with the curfew condition of this order. [66] You shall respond personally and immediately to the telephone when a peace officer or your supervisor makes a telephone call to your residence for the purpose of determining your compliance with the curfew condition of this order. So you go to the door or you answer the phone if the police or your supervisor are checking on you. [67] You shall not possess or consume any non-prescribed drugs. [68] Now, these are the terms for the full 18 months for your conditional sentence, Mr. Heidari. [69] You shall attend for and participate in and complete to the satisfaction of your supervisor any counselling program as directed by your supervisor. [70] I am further going to order community work service for you, Mr. Heidari. You shall perform and complete at the direction and to the satisfaction of your supervisor 120 hours of community service work which shall be completed by no later than -- you did not suggest a date on it, counsel. I am going to suggest by no later than September 30, 2013. [71] MR. MILBURN: Yes, My Lord. [72] THE COURT: I am going to recommend that you do your work service at a detoxification facility or other similar organization assisting persons suffering from drug addiction subject to a determination ultimately by your supervisor. [73] There will be an order under s. 109 of the Criminal Code imposing a 10-year mandatory firearm prohibition and, by that, I mean, Mr. Heidari, you shall not possess any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance for a period of 10 years. [74] I grant the forfeiture order that the Crown requested, and I take it that is pursuant to s. 490(9) of the Criminal Code? [75] MS. LODA: In fact, I believe it is pursuant to s. 16 of the Controlled Drugs and Substances Act. [76] THE COURT: Very well, s. 16 of the Controlled Drugs and Substances Act. [77] I further grant the DNA order as requested. I appreciate this is a discretionary matter. However, given the facts of this case, I exercise my discretion in favour of granting the order. [78] Counsel, are there further matters I have not covered? [79] MR. MILBURN: Just a question, My Lord, the sentence is an 18-month conditional sentence order. Do I understand that the house arrest with the stated exceptions are to carry forward for 12 months from today's date? [80] THE COURT: Yes, that is correct. [81] MR. MILBURN: Your Lordship did make a reference to six months while reading the order. That may have been in error and should have been 12 months, I am not certain. [82] THE COURT: No, it should be 12 months. [83] MR. MILBURN: And the final six months of the conditional sentence order will not have the house arrest provisions in it, I take it -- [84] THE COURT: That is correct. [85] MR. MILBURN: -- in hearing the judgment? [86] THE COURT: That is correct. [87] MR. MILBURN: Thank you, those are my questions. [88] MS. LODA: I have two small points. One is I am wondering if it would be beneficial to Mr. Heidari and, in particular, to the conditional sentence supervisor to work in an exception to the house arrest for the community work service hours? [89] THE COURT: Yes. [90] MS. LODA: It has not been specifically addressed there. [91] THE COURT: Yes, I agree. [92] MR. MILBURN: Yes. [93] MS. LODA: The second thing is I think that given that there has been a DNA order and Mr. Heidari is out of custody that he needs to be directed by a particular date to attend at the North Vancouver RCMP office. [94] MR. MILBURN: Yes, I agree with my friend. [95] THE COURT: Yes, I omitted to make that reference and I -- [96] MS. LODA: His bail supervisor -- or his conditional sentence supervisor will be able to tell him the particular dates and times, but there are at least two or three days every week in North Vancouver that DNA is collected. So if Your Lordship directed that he attend by maybe next -- within a week, so next Thursday by 4:00 p.m. [97] THE COURT: Yes, no later than February 7 -- [98] MS. LODA: Thank you. [99] THE COURT: -- 2013. [100] Mr. Heidari, do you understand the terms of the orders that I have imposed? [101] THE ACCUSED: Yes, sir. [102] THE COURT: I need to also advise you that should there be a breach of any of the terms of these orders, you may be brought back before this Court and this Court may, as one of the options, impose you to a term of custody in place of the conditional sentence order. Do you understand that? [103] THE ACCUSED: Yes. [104] THE COURT: Thank you. [105] MS. LODA: And the Crown directs a stay of proceedings with respect to Counts 4 through 6. [106] THE COURT: Counts 4 through 6 are stayed. Thank you. [107] MS. LODA: Thank you. [108] THE CLERK: And, My Lord, is there a section number for the DNA and any victim fine surcharge? [109] MS. LODA: The section number for the DNA is 487.051. [110] THE CLERK: And victim fine surcharge? [111] THE COURT: There is no victim fine surcharge. There was none requested. "Greyell J"