R. v. Zamani

R. v. Zamani Collection Decisions of the Court of Appeal Date 1999-10-12 Docket numbers C31958 Judges Osborne, Coulter Arthur Anthony; Doherty, David H.; Charron, Louise Vivianne Subject Criminal Decision Content DATE: 19991012 DOCKET: C31958 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Appellant) v. MOHAMED NAJIB ZAMANI (Respondent) BEFORE: OSBORNE A.C.J.O., DOHERTY and CHARRON JJ.A. COUNSEL: Brad Reitz for the appellant David E. Harris for the respondent HEARD: September 22, 1999 On appeal from the sentenced imposed by Mr. Justice Sharpe dated March 30, 1999. ENDORSEMENT [1] The respondent, a first offender, was convicted of selling 50 grams of heroin for $5,500 to a police agent. He pleaded not guilty and after his conviction unsuccessfully raised an entrapment argument. The trial judge imposed a sentence of 2 years less one day. The Crown seeks leave to appeal that sentence and argues that the trial judge erred in principle by overemphasizing the rehabilitation of the respondent. The Crown also argues that the sentence imposed was outside the established range for sentences in such cases. [2] The respondent is 43 years of age, married, has two young children and a large and supportive family. He has gotten by since he came to Canada on social assistance augmented by various part-time jobs. There is no suggestion that he is addicted to any drug and it must be taken that commercial gain was his motive for trafficking on this occasion. The author of a pre-sentence report observed that the respondent expressed no remorse and displayed “an apathetic attitude” towards the offence. The respondent was on bail prior to sentence. [3] The trial judge identified denunciation, deterrence and rehabilitation as the three key factors to be blended in imposing the appropriate sentence. In his view, the first and second requires a significant period of incarceration, but the third mitigated the length of the period of that incarceration and permitted the trial judge to impose a maximum reformatory sentence. [4] In our view, this appeal comes down to whether the sentence imposed is outside the accepted range for this offence and these circumstances. Counsel referred us to many cases involving trafficking in heroin. No doubt, the offence almost always attracts a significant jail term and usually calls for a penitentiary term. The trial judge could have imposed a sentence of 3 or 4 years on these facts. Myself and Osborne A.C.J.O., however, cannot say that the imposition of a maximum reformatory term was outside of the range in these circumstances. In so holding, we defer to the trial judge’s conclusion that this respondent demonstrated a strong potential for rehabilitation. [5] We would grant leave to appeal, but would dismiss the appeal from the sentence imposed. “Coulter Osborne per Doherty J.A.” “Doherty J.A.” CHARRON J.A. (Dissenting): [6] I disagree with this result. In my view, the sentence was manifestly unfit, having regard to the usual range imposed upon like accused for this type of offence. While a lesser sentence may be appropriate in circumstances where the chance of rehabilitation can be convincingly demonstrated, in my view, the record here does not support such a finding. The sentencing judge, in his reasons, noted an absence of mitigating factors other than the fact that the appellant had no record and had a supportive wife and a young family. In my view, these factors do not justify the imposition of a sentence that falls outside the general range. [7] I would allow the appeal and increase the sentence, given the findings of the trial judge of some chance at rehabilitation, to 4 years imprisonment. “Louise Charron J.A.”