R. v. Salamat Ravandi

2015 BCSC 2167 R. v. Salamat Ravandi

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Salamat Ravandi, 2015 BCSC 2167 Date: 20151016 Docket: 26235 Registry: Vancouver Regina v. Aghasi Salamat Ravandi Before: The Honourable Mr. Justice Davies Oral Reasons for Sentence Counsel for the Crown: M. Namazi Counsel for the Accused: M. Peters Place and Date of Hearing: Vancouver, B.C. October 16, 2015 Place and Date of Judgment: Vancouver, B.C. October 16, 2015 [1] THE COURT: Aghasi Salamat Ravandi, has been convicted of unlawfully importing 17.95 kilograms of opium into Canada between March 9 and 11, 2011, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c.

19. He has also been convicted for the possession of that opium for the purposes of trafficking, contrary to s. 5(2) of that Act. [2] I convicted Mr. Salamat Ravandi of those offences on January 15, 2015. My reasons for judgment in respect of that conviction are indexed at 2015 BCSC 511. [3] I will accordingly not record in any great detail the circumstances of the offence, other than as necessary. [4] I reserve the right to edit these reasons for grammar or readability as necessary, but nothing I may do by way of editing will alter the result. [5] Sentencing has been delayed in this matter due to the illness of Mr. Salamat Ravandi's trial counsel as well as subsequent changes of counsel. Mr. Salamat Ravandi has therefore been incarcerated since March 20, 2015, awaiting sentence. [6] According to the authorities in this province, the range of sentencing for the offences for which Mr. Salamat Ravandi has been convicted is from three to seven years of imprisonment: see R. v. Aghabeigi, 2004 BCCA 263, and R. v. Pirouz, 2009 BCCA 51. [7] The Crown submits that a sentence of six to seven years is necessary to appropriately conform with that range of sentencing, having regard to all of the circumstances in this case. The defence says that a three‑year sentence at the low range of the range would be appropriate, less time served of 10 and a half months, based upon pre-sentencing

custody. [8] The background circumstances in this case concerning Mr. Salamat Ravandi's personal history are that he is now 36 years old. He was born in and grew up in Orumiyeh in West Azerbaijan Province, Iran, of Kurdish heritage. [9] Mr. Salamat Ravandi reached only Grade 4 in school in Iran before he was forced to leave to support his family. His father had been shot in the leg by government troops and had become permanently disabled. [10] As an adult in Iran, Mr. Salamat Ravandi worked as a taxi driver and had a clothing store. He and his family suffered persecution in Iran because of their Kurdish ethnicity. [11] In 2006, Mr. Salamat Ravandi was forced to leave Iran when pro‑Kurdish newspapers were found in his taxicab. He had been a member of a Kurdish opposition group. [12] In 2006, Mr. Salamat Ravandi fled to Turkey with his wife. They had been married in Iran on October 28, 2004. [13] Mr. Salamat Ravandi and his wife lived in Turkey for two and a half years before emigrating to Canada in 2009 as convention refugees. [14] Mr. Salamat Ravandi and his wife have two children, a son, S., who is 10 years old and in Grade 5, and their daughter, A, who is three. Mr. Salamat Ravandi's wife suffers from serious headaches and dizziness spells. She cannot work because of these conditions and receives disability benefits. [15] Mr. Salamat Ravandi is now a permanent resident of

Canada. [16] Since his arrival in Vancouver and before rendering himself into custody in respect of these charges in March of this year, Mr. Salamat Ravandi was generally fully employed and supported his family. [17] In 2009, upon arriving in the Lower Mainland, Mr. Salamat Ravandi began working in a pizza restaurant for four months. He then worked for a year for a heating and cooling company, and was employed cleaning air ducts. Mr. Salamat Ravandi was off work for eight months when he became ill, and then returned to that company for a further two months. [18] In addition to that employment, Mr. Salamat Ravandi has worked packing papers for the Vancouver Sun, preparing shipments for GPS Food Services, and as a driver for a pharmacy in Whalley for methadone clinics. [19] In 2012, Mr. Salamat Ravandi commenced his own business which supplies heating and cooling services, as well as carpet cleaning. That business is now obviously in limbo, given his incarceration. [20] Apart from the offences now before this court, Mr. Salamat Ravandi has no criminal charges or convictions in either Iran or in Canada. [21] Mr. Salamat Ravandi does not consume alcohol or take drugs. [22] Mr. Salamat Ravandi was arrested on these charges on March 11, 2011, and initially released on a promise to appear. On September 14, 2011, the Crown sought terms of recognizance with travel restrictions, without

deposit or sureties. [23] Mr. Salamat Ravandi has been fully compliant with the terms of his judicial release for now almost four years. After his conviction, Mr. Salamat Ravandi rendered himself into custody, and as I previously stated, he has now been incarcerated for seven months since March 20, 2015. [24] Mr. Salamat Ravandi says he is remorseful for his conduct and is prepared to pay his debt to society for his crimes. He says there is no punishment for him worse than the separation from his young family. He says he is very sorry for his mistakes and for wasting taxpayers' money on this prosecution. He says he will never reoffend. [25] The provisions of the Criminal Code, R.S.C. 1985, c. C-46, govern sentencing in this country. Section 718 of the Code provides that: 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 that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the

harm done to victims and to the community. [26] Section 718.1 provides that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [27] Section 718.2 sets out other important sentencing principles, including the principle that a sentence should be increased or reduced to account for aggravating and mitigating factors, and the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [28] Importing and possession of opium for the purpose of trafficking are obviously very serious offences. Opium is a Schedule I drug and, as such, is prohibited from importation into Canada with the potential for heavy penalties for breach of that provision. [29] The quantity of opium imported into Canada in this case is also very large. Although sentencing is not a mathematical exercise, it is obvious that importing 17.95 kilograms of opium into Canada is not only of potentially greater value and profit to the importer than smaller amounts, but should, in the normal course, attract a longer sentence. [30] The evidence in this case establishes that the value of the opium sought to be imported is from $250,000 to $500,000, depending upon the basis upon which it might be sold to subsequent suppliers or users. [31] Having said that, however, the importation of

opium does not generally amount to sentences in the range of trial for the importation of other Schedule I drugs, including trafficking in heroin or cocaine: see R. v. Pocasangre, 2013 BCSC 193 at para. 26, and R. v. Dyal, 2007 BCSC 623 at para. 18. [32] That is so because, as noted by Justice Wedge in R. v. Eshghabadi, 2009 BCSC 1875, para. 41, in referring to the Ontario Court of Appeal decision in R. v. Abolmolouk (1987), 23 O.A.C. 144: [41] The Court of Appeal noted the evidence of an expert who said that opium is not a very marketable commodity in Canada except in certain ethnic groups. While a hard narcotic, it has only one-tenth the strength of heroin. The Court, citing the LeDain Commission on Non-Medical Use of Drugs, noted that smoking opium produces a decidedly lower dependence liability than morphine or heroin. [33] Accordingly, the range for sentencing in importation of opium cases is, I have noted, in the three‑to seven‑year range, not the much higher range appropriate for sentencing for the importation of heroin or cocaine. [34] I agree with the Crown's submission that deterrence and denunciation are of primary importance in respect of the sentencing in this matter. I also, however, agree with the submission of Mr. Peters on behalf of Mr. Salamat Ravandi that rehabilitation is of some significance as are Mr. Salamat Ravandi's personal circumstances. [35] The

Crown points to the following factors which Ms. Namazi says should result in a sentence from six to seven years for Mr. Salamat Ravandi's offending: 1) the large quantity of 17.95 kilograms of a Schedule I drug imported from Iran; 2) Mr. Salamat Ravandi's key role in that importing and its intention for the purpose of trafficking as a joint venture for purely commercial profit; 3) Mr. Salamat Ravandi is not himself an addict; 4) the preplanning involved in the importation and the sophisticated nature of the concealment of the quantity of 17.95 kilograms of drugs in 12 samovars; 5) the fact that Mr. Salamat Ravandi is a convention refugee and a permanent resident of Canada; 6) the fact that from time to time Mr. Salamat Ravandi has availed himself of the public welfare system in Canada; 7) the fact that before he was found in possession of the shipment which came to him from Iran, Mr. Salamat Ravandi was told by the police of concerns expressed to the police about his actions with another man about importing drugs from Iran, and warned by the police that he should not do so, and yet proceeded with the operation without regard to those warnings. [36] The Crown accordingly submits that the only mitigating factor to be considered in this case is that it is a first offence. [37] The Crown also suggests that the remorse which is now expressed by Mr. Salamat Ravandi is more in the

nature of looking after his concerns about what will happen to his family than genuine remorse for his actions. [38] Mr. Peters says, on behalf of Mr. Salamat Ravandi, that the aggravating factors referred to by the Crown are common to virtually all importing of opium cases which have resulted in lower sentences than that suggested by the Crown and that, except for the warning by the police in Mr. Salamat Ravandi's case, the specifics of which are somewhat vague, the case is virtually not distinguishable from those other cases which resulted in sentencing at the lower range. [39] Mr. Peters also relies on mitigating circumstances which he records in his written submissions as follows: 1) Mr. Salamat Ravandi's profound remorse; 2) Mr. Salamat Ravandi has no convictions for any offences in Canada or Iran; 3) Mr. Salamat Ravandi has been a productive member of society since his arrival in Canada in 2009; 4) until his incarceration on March 20, 2015, Mr. Salamat Ravandi had been supporting his wife and two young children; 5) the importation to and the possession of the opium in Canada was not sophisticated; 6) there is no evidence that Mr. Salamat Ravandi is part of any organization or distribution system for opium; 7) the offences did not involve any weapons or violence; 8) Mr. Salamat Ravandi has successfully completed four years of judicial interim release without incident;

and 9) it has been held by this court that the Le Dain Commission Report and other authorities establish that opium is a far less serious drug than heroin. [40] I have already addressed the issue of opium being a less serious drug than heroin. In my view, that factor establishes the lower range of sentencing and is not an additional mitigating factor to be further considered in this case. [41] I have also discussed in some respects the issue of Mr. Salamat Ravandi being at least to some extent a productive member of society. [42] I do not, however, accept that Mr. Salamat Ravandi's involvement in importing was not sophisticated. Although, at best, unwise, to the extent that he himself paid for the rental car and the duty on the drugs he was shipping himself, Mr. Salamat Ravandi's use of the rented car and the nature of the concealment of the large quantity of opium, as well as the other indicia of the offence to avoid police detection at the airport and during the pickup of the drugs, convinces me that this was a relatively sophisticated, albeit poorly executed, scheme. [43] I also do not find that Mr. Salamat Ravandi's treatment in Iran should reduce or impact sentencing in this matter to the extent that it did for the offenders in R. v. Eshghabadi or in R. v. Pirouz. Those cases indicated far greater and far more severe treatment of an abusive nature by Iranian authorities to

the extent that mental illness resulted and the offenders became addicts. [44] Although I acknowledge Mr. Salamat Ravandi's and his family's difficult times in Iran and Canada, this offending was of a purely commercial nature and it would, in my view, be wrong to in any way countenance his actions by a reduced sentence because of his economic conditions. [45] I do, however, accept that Mr. Salamat Ravandi's remorse is genuine. Although late coming, after almost four years while he was on bail and after a trial, I do not find that it was only calculated to reduce punishment. [46] I accept that Mr. Salamat Ravandi is remorseful and I also accept that he and his family have been embarrassed. The letters written by both him and his wife satisfy me that I should, to some extent, consider remorse as a mitigating factor. [47] In reaching that conclusion, I also note that Mr. Salamat Ravandi's performance while on bail indicates his willingness to comply with sanctions and, in my view, speaks well for his rehabilitative prospects. [48] While I realize that Mr. Salamat Ravandi's family will suffer as a consequence of his continued incarceration, that fact does not override his willingness to engage in criminal activity, purely for commercial profit, by importing a controlled substance into a country which had afforded him both convention refugee status and permanent residency to remove

him from the difficulties which he had faced in Iran. [49] Having considered all of the authorities provided by counsel and the evidence at trial, and the very able submissions of both counsel for the Crown and Mr. Salamat Ravandi, I find that the appropriate sentence for Mr. Salamat Ravandi's offending is 4.5 years on each count to be served concurrently. [50] He will be credited with 10 and a half months of presentence custody, resulting in a sentence yet to be served of three years, seven and a half months. [51] I will make the ancillary orders requested by the Crown under s. 487.04 with respect to the provision of DNA, and the weapons prohibition under s. 109(2) for 10 years. "Davies J."