R. v. Heidari

2013 BCSC 872 R. v. Heidari

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Heidari, 2013 BCSC 872 Date: 20130426 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: K.K. Guest Counsel for the Accused: D.G. Milburn Place and Date of Trial/Hearing: Vancouver, B.C. April 26, 2013 Place and Date of Judgment: Vancouver, B.C. April 26, 2013 [1] THE COURT: These reasons follow the reasons issued earlier today and will form part of them. I have now heard the submissions of counsel in respect of the sentence which should be imposed as a result of Mr. Heidari's breach of the terms of his conditional sentence order (CSO). [2] Section 742.6(9) of the Criminal Code, R.S.C. 1985, c. C-46 provides that Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may (a) take no action; (b) change the optional conditions; (c) suspend the conditional sentence order and direct (i) that the offender serve in custody a portion of the unexpired sentence, and (ii) that the conditional sentence order resume on the offender's release from custody, either with or without changes to the optional conditions; or (d) terminate the conditional sentence order

and direct that the offender be committed to custody until the expiration of the sentence. [3] The Crown's position is that Mr. Heidari should be placed in custody to serve out the balance of the CSO time. [4] The defence says that I should consider the time that Mr. Heidari has spent in custody, some five days, and that I should extend the time of the CSO, that is, not exercise my discretion under s. 742.6(16) to give Mr. Heidari credit for the time the CSO has been suspended under s. 742.1(10). Alternatively, the defence says that incarceration for the period of 30 days would be appropriate. [5] I have considered a number of factors in reaching my determination in this matter. Some of those factors were outlined in my original decision. They include the seriousness of the underlying offence and the mitigating factors which I was concerned with when I initially imposed sentence which led me to impose a conditional sentence order. [6] I have considered that there have been several breaches by Mr. Heidari which indicates to me a lack of respect and regard for this Court's orders. I have considered the sentencing proceedings including that portion of those proceedings I read out this morning. Mr. Heidari was warned that he was under house arrest and was only allowed out of his residence for purposes specified on the written permission of his conditional sentence supervisor.

Attending a tanning salon was not one of those purposes. [7] I was told during sentencing submissions by Mr. Milburn that Mr. Heidari had learned his lesson after spending some nine days in jail arising from a finding in July of 2011 that he was in breach of an undertaking and that spending time in custody had given him a wake-up call. Apparently not enough of a wake-up call. In my view, his conduct, attending the tanning salon, was an affront to the court's conditional sentence order. The court does not take lightly a breach of the terms of its orders. [8] Mr. Heidari, would you stand, please. [9] I sentence you to 90 days in jail to be served as a part of the house arrest portion of your conditional sentence order. The duration of the conditional sentence order is extended by reason of the operation of s. 742.6(10) of the Criminal Code. [10] Counsel, are there matters arising? [11] MR. MILBURN: Not from the defence. [12] THE COURT: The Crown? [SUBMISSIONS RE RESIDENCE CONDITION] [13] THE COURT: Very well, then, whichever condition it is that relates to the address will be amended so as to include Mr. Heidari Sr.'s residential address, and I think that was in the original -- [14] MR. FAI: Yes, it was. [15] THE COURT: -- was it not? [16] MR. FAI: It is a Keith Road address. Just for greater certainty, Mr. Heidari Sr., could you stand up and give the address? [17] MR. HEIDARI SR.: 764 Keith Road East, North Vancouver. [18] THE COURT: Yes, 764 East Keith Road, North Vancouver. That was the address that was specified in the original conditions. [19] MR. FAI: Yes [20] MS. GUEST: And that is agreeable to Crown. [21] MR. FAI: Yes. [22] THE COURT: Very well. "Greyell J."