R. v. Ziaee, 2017 BCSC 569

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Ziaee, 2017 BCSC 569 Date: 20170403 Docket: 164987-1 Registry: Victoria Regina v. Ali Arash Ziaee Zachary Scott Matheson Before: The Honourable Mr. Justice B. Mackenzie Oral Reasons for Sentence Re Zachary Scott Matheson Counsel for Federal Crown: J. Cramer Counsel for Zachary Matheson: B. Hickford Place and Date of Hearing: Victoria, B.C. March 10, 2017 Place and Date of Judgment: Victoria, B.C. April 3, 2017 [ 1 ] THE COURT: Mr.

Matheson is before the court for sentencing after I found him guilty of four counts of possession of cocaine, ecstasy, and methamphetamine for the purpose of trafficking, all arising from the same set of circumstances.

As I have just mentioned, the charges were vigorously, but properly, contested, and once the guilty verdicts were rendered, a Jordan delay application was made, which I dismissed. [ 2 ] As far as sentencing is concerned, both Crown and defence agree these are serious offences and that a significant period of incarceration is necessary and appropriate having regard to all the relevant fundamental principles of sentencing, especially, perhaps, deterrence, denunciation, and rehabilitation.

Not surprisingly, counsel disagree as to the actual length of a fit and proper sentence. [ 3 ] In this regard, the Crown submits that given Mr. Matheson's role as, in its opinion, the operating mind of this trafficking enterprise as between himself and his co-accused Mr. Ziaee, a sentence of six years should be imposed. The defence, on the other hand, submits a three-year sentence would properly address deterrence and denunciation, the same sentence Mr. Ziaee received after he pled guilty to possession of cocaine and GHB for the purpose of trafficking, albeit pursuant to a joint submission by Crown and defence.

Alternatively, the defence submits that if I was unable to accept this submission, a sentence "slightly longer" would be appropriate and less than the six-year sentence suggested by the Crown given the fact that Mr. Matheson has been performing well in the community on judicial interim release since his arrest on June 6th, 2013. [ 4 ] While my reasons for finding Mr.

Matheson guilty of the four counts of possession for the purpose of trafficking are available, and indexed as 2016 BCSC 2575 , in order to put today's proceeding into perspective, I will briefly review the salient facts. [ 5 ] After a four-month investigation, which included lengthy surveillance of Mr. Ziaee, where he was observed to make regular sales of drugs consistent with a dial-a-dope operation, and the obtaining of many text messages between Mr. Ziaee and Mr. Matheson, on June 6th, 2013, police arrested Mr. Ziaee as he approached an apartment in a building a short distance from Mr. Matheson's residence.

Mr. Ziaee was in possession of two kilos of cocaine, which he had brought from the Lower Mainland earlier that day. A moment or two before his arrival at what has been admitted to be a stash site, Mr. Ziaee texted Mr. Matheson and advised Mr. Matheson of his arrival at the apartment. A moment later, Mr. Matheson entered the hallway of the apartment building, but when he observed Mr. Ziaee in police custody, Mr. Matheson quickly departed the scene, only to be arrested minutes later as he headed back to his residence. [ 6 ] Located on Mr.

Matheson were keys for the apartment building, keys for the apartment itself, as well as keys for two safes that were found inside the stash site, one of which contained significant amounts of methamphetamine, ecstasy, and cocaine, as well as some ammunition, but no firearms. There was no dispute that this particular safe was, in fact, the property of Mr. Matheson, it having been returned to him at his request in 2006 after it was seized by police in a drug investigation. [ 7 ] In addition to the various keys, also located on Mr.

Matheson when he was arrested was a digital scale coated with cocaine residue, a square, plastic bowl coated again with cocaine and tetrahydrocannabinol residue, and a folding knife, which, according to the expert opinion tendered during the trial, was a tool suitable for breaking bulk quantities of cocaine into smaller quantities for distribution. The cellphone that was used to text Mr. Ziaee was also located on Mr. Matheson. [ 8 ] When this evidence was combined with the weeks of text messages between Mr. Ziaee and Mr. Matheson, as well as documentation located in Mr.

Matheson's residence pertaining to the apartment that was used as the stash site, I concluded the evidence

overwhelmingly supported a conclusion that the Crown had proven these charges beyond a reasonable doubt. [ 9 ] In support of its position that a six-year penalty is warranted, the Crown points to what it says are the following aggravated circumstances. First, the Crown submits that Mr. Matheson was the principal in this enterprise and that he employed Mr. Ziaee as his subordinate, the person who would run the risk of making the daily street-level drug deals while Mr. Matheson took steps to insulate himself from such direct drug dealing. In response, the defence submits Mr. Matheson and Mr.

Ziaee were equal partners and that it was Mr. Ziaee who introduced Mr. Matheson to the trafficking in cocaine, crystal meth, and ecstasy. [ 10 ] Given the totality of the evidence, I am unable to accept the defence characterization of the relationship between Mr. Ziaee and Mr. Matheson. As the Crown points out, it was Mr. Matheson who had the only key for the large safe, which contained most of the drugs located in the stash site. It was Mr. Ziaee who advised Mr. Matheson that Mr. Ziaee would take care of a situation where Mr. Matheson was apparently "ripped off" in a drug deal. In addition, Mr.

Ziaee sent a text to Mr. Matheson stating that if it were not for Mr. Matheson, "We would not have a chance for bigger stuff." In addition, the location of the document relating to the tenancy of the stash site, and a text message from Mr. Matheson to Mr. Ziaee that Mr. Matheson had taken care of the overdue rent, is further evidence supporting the Crown's contention that Mr. Matheson was indeed running the operation as between himself and Mr. Ziaee. [ 11 ] Finally, the overall content of the many text messages supports the Crown's position that it was Mr. Matheson who was directing the activities of Mr.

Ziaee as opposed to the other way around. Given the totality of these circumstances, I agree with the Crown that Mr. Ziaee was the underling and subject to the overall direction of Mr. Matheson in the distribution of these narcotics. [ 12 ] A second aggravating circumstance the Crown says supports its position on sentencing is the relatively sophisticated nature of the enterprise, noting the use of a stash site, the tenancy registered in the name of another person, the use of a dedicated work phone, as well as the use of an encrypted phone.

As I have already mentioned, the circumstances of the relationship support the Crown's submission that these steps were taken so Mr. Matheson could insulate himself from the daily activities of Mr. Ziaee as the street dealer as well as the courier bringing cocaine from the Lower Mainland. [ 13 ] As the court in R. v. Ou-Yang noted at paragraph 9: The use of the 'middle man' technique as being indicative of sophisticated criminal behaviour and therefore an aggravating factor on sentencing was noted in R. v.

Garafoulis ... at paragraph 7: The Manitoba Court of Appeal there said the following: The accused in this case was the principal in a sophisticated operation. He did not handle the cocaine himself and was never present when it was delivered to a purchaser. By the use of intermediaries, he isolated himself from detection. [ 14 ] Having concluded Mr. Matheson was the operating mind of this enterprise, I agree with the Crown that this is an aggravating circumstance. [ 15 ] Turning to the nature and quantity of the drugs in question, there is no doubt these are serious drugs, as many decisions have noted.

Cocaine and crystal meth are especially insidious, causing untold damage on individual users and society as a whole. Referring again to the comments of the court in Ou-Yang at paragraph 5: Cocaine trafficking ultimately results in wreaking havoc upon individuals and upon whole communities, as anyone who spends any time in our criminal courts can see on a daily basis.

It is only to be expected, therefore, that the Courts will place considerable emphasis on the elements of denunciation and deterrence when sentencing those convicted of contributing in any substantial way to this sad state of affairs. [ 16 ] In addition, the quantity of the drugs here is significant. The two kilos of cocaine found on Mr. Ziaee, which I have found were transported to Victoria at the direction of Mr. Matheson, were valued at approximately $136,000 to $211,000 depending in what quantities it was sold.

While the value of the ecstasy was relatively modest, the value of the methamphetamine was anywhere from $51,000 to $96,000, again depending on how it was sold. [ 17 ] I also agree with Crown counsel that this was not a one off endeavour. The number of empty kilo bags in the apartment, the time it takes to build a relatively significant customer base, as evidenced by the number of sales Mr. Ziaee was conducting, and the fact that Mr.

Ziaee travelled to the Lower Mainland approximately every two weeks, supports the Crown's submission that this was an ongoing, for profit, commercial enterprise with the sole motivation, as Mr. Matheson did not use any of these drugs, being the opportunity for significant financial gain. [ 18 ] Lastly, Mr. Matheson does not come before the court as a first-time offender. He has a criminal record which commences in Youth Court in 1991 in Toronto. The record includes cognate convictions, although I appreciate defence counsel's submission that they are relatively dated.

Nevertheless, it is not an insignificant record. Leaving aside some property and offences of violence in Youth Court, Mr. Matheson has two possession of narcotic offences back in 1995 and 1996; a trafficking conviction in 1997 with an intermittent sentence imposed; a 1998 trafficking conviction for which he received an eight month sentence, and a conviction for two counts of PPT in 2001, one involving cocaine and the other marihuana.

I accept what defence counsel has submitted that the offence dates there are August 1999 and that the sentence was a one day sentence. [ 19 ] On that latter point, it is clear from the record of proceedings that counsel at that time convinced the court Mr. Matheson should be credited with eight months in custody on those charges even though he was in custody for that eight-month period on a different matter. Moreover, given that the going rate for dead time was two to one at that point in time, the Crown submits that this was equal to a 16-month sentence, which given the circumstances and Mr.

Matheson's record, would have been appropriate, in my view. There are also two more convictions, possession of a restricted firearm in August 2001, again credited with the same eight months' dead time, and a $1,000 fine for possession of marihuana in 2006.

[ 20 ] Turning to the sentence imposed on Mr. Matheson's co-accused, Mr. Ziaee, the Crown submits his three-year sentence should not result in a similar, or even close to similar, sentence for Mr. Matheson due to the fact that Mr. Ziaee had no criminal record, was an employee of Mr. Matheson and subject to his directions, and that Mr. Ziaee entered a plea of guilty to the offences.

On this last point, Crown counsel has readily acknowledged, quite properly so, that the lack of a guilty plea can never be considered an aggravating factor or affect what would otherwise be a fit sentence, but the significant mitigating factor of a guilty plea is absent in Mr. Matheson's case. Given these circumstances, the Crown says because of the role Mr. Matheson played vis-à-vis his employee, Mr. Ziaee, Mr. Matheson's moral culpability is significant and could very well warrant a sentence in the area of eight years, the length of sentence imposed on Mr.

Montgomery by Associate Chief Justice Dohm, in 2006, in R. v. Montgomery et al . [ 21 ] In that case, the court concluded Mr. Montgomery was the head of a sophisticated drug enterprise with 20 employees that was bringing in profits of over $100,000 a month. In the same case, a Mr. Newson was found to hold the secondary position in the hierarchy and was directly involved in the sale of cocaine at the retail and wholesale level. Mr. Newson pled guilty and had no criminal record. He received a sentence of six years. This sentence was upheld by the Court of Appeal.

The Crown, therefore, submits the six year sentence it is suggesting is reasonable and, in fact, shows a degree of restraint or moderation, a disposition that recognizes the fact that Mr. Matheson has been on bail for almost four years without any apparent incident and now, at the age of 40, has a spouse and two young children. Moreover, he has been employed on a regular basis in the oil fields in Alberta since his arrest. In response to this particular case, defence acknowledges Mr.

Newson pled guilty and had no record, but submits the fact that the Montgomery enterprise included 20 employees illustrates that that was a much different enterprise than what appears to be Mr. Matheson's two person operation. [ 22 ] The Crown has also referred to the following cases in support of its position. R. v. Conrad , a 2012 B.C. Supreme Court decision where, for three convictions for PPT of cocaine, two in 2006 and a third one in 2008, a global sentence of seven years was imposed after a guilty plea. In R. v.

Camara , a 2006 Court of Appeal decision, the offender received a five year sentence for conspiracy and possession of cocaine for the purpose of trafficking as well as trafficking in cocaine. The Court of Appeal noted in that case that the trial judge found Camara near the top of the drug hierarchy.

In Camara , the trial judge took into consideration as a mitigating factor the time from arrest to disposition. [ 23 ] On this particular point, the Court of Appeal referred to the trial judge's reasons and said the following at paragraph 9: In concluding that the range was four to six years, the trial judge noted … the difficulty of being “in the shadow of the proceedings for almost eight years”...

The court then also went on to quote from the trial judge's reasons: An important effect of the delay in this case is that there has been a long period after these offences during which the accused have gone on to do various things, which form part of the circumstances to be considered on sentencing. [ 24 ] The defence submits that this illustrates that it is appropriate to consider what any offender has done in the community from the date of the offence to the date of sentencing.

I have no difficulty accepting that general proposition. [ 25 ] Three other decisions the Crown referred to where five year sentences were imposed are: R. v. Nicol , 2012 BCSC 1579 , R. v. Sagastume (21 May 2013), Courtney Registry No. 35936-3-C (B.C.P.C.), and R. v.

Majnoon, 2009 ONCA 876 , a ll cases involving the distribution of cocaine, and cases where the accused entered guilty pleas, always, as I have noted, a significant mitigating factor. [ 26 ] Both counsel quite properly acknowledge that prior dispositions can only provide a range of sentence as a guideline with a view to obtaining some degree of consistency and predictability in sentencing for similar offences, quite often a rather elusive goal, and as such, sentencing is a very individual exercise depending on the particular circumstances of the offence and the offender. [ 27 ] In this regard, Crown counsel has pointed out the circumstances in Sagastume are quite similar to the present case absent a guilty plea on the part of Mr.

Matheson. In that case, the court found the accused was the operating mind behind a sophisticated scheme, that the accused gave directions to co-accused, attended a stash site, but otherwise attempted to insulate himself from direct involvement in the distribution of the product, operated as a pure commercial enterprise. In that case, there was a related criminal record. However, in that particular case, Mr. Sagastume's rehabilitation apparently seemed to be quite limited. [ 28 ] That set of circumstances, as far as rehabilitation is concerned, is different to Mr. Matheson's situation. Mr.

Matheson finds himself with a spouse, two children, and significant work history since his arrest, personal circumstances which Crown counsel has fairly acknowledged can be considered mitigating factors. Crown counsel has, in fact, submitted that all things considered, especially Mr. Matheson's difficult upbringing in Toronto, he clearly has potential and rehabilitation must not be lost sight of when imposing a fit sentence. At the same time, the Crown tempers this acknowledgement with the legitimate observation that even after the earlier convictions and the 2006 drug offence, Mr.

Matheson was an active and serious participant in the world of drug trafficking. [ 29 ] As I have said, defence counsel has properly and realistically acknowledged the appropriate range of sentence for these relatively sophisticated offences with Mr. Matheson's record is three years or more. I have, however, found that Mr. Matheson and Mr. Ziaee were not equal partners and that Mr. Matheson was, indeed, the operating mind of this enterprise. [ 30 ] In support of its submission, the defence has provided me with the following authorities: R. v.

Authur , where a three-year sentence was imposed on a drug courier who was found guilty of PPT of cocaine, but who had no criminal record; R. v. Myre , a 2012 decision from Provincial Court, where a three-and-a-half-year sentence for possession of cocaine for the purpose of trafficking as well as methamphetamine was imposed after a guilty plea, notwithstanding the fact that a four year sentence in 2008 was imposed for offences involving weapons and trafficking in narcotics. Again, however, the court there found Mr.

Myre had been used by a person higher up in the drug hierarchy in order for that other person to insulate himself from detection by the police. [ 31 ] There was another decision provided by defence, R. v. Nesbitt , where a conditional sentence was imposed. It is unnecessary to refer to the circumstances there because the case is so distinguishable from the present circumstances, but defence counsel does invite me to note that Justice Levine, in that case, observed that the accused 's rehabilitation in the years following the commission of the

offence was a significant factor that led the Court of Appeal to uphold a very unique sentence given the unusual circumstances in that case. [ 32 ] In a similar vein, I accept that Mr. Matheson has had a good work record over the last four years, as attested to in the letters of reference defence counsel has provided. I have also carefully considered the poignant letter written by Mr. Matheson's spouse, noting the hardship she will endure raising two young children until their father is released.

However, as the Court of Appeal said in Newson , at paragraph 18: It is often the case that a parent’s criminal offending creates hardship for members of the family. That children are often deprived of parental guidance and care when a parent is incarcerated is inevitable in cases of serious offending by a parent. [ 33 ] Having regard to all of the relevant purposes and principles of sentencing set out in s. 718, 718.1, and 718.2, and balancing the mitigating and aggravating factors, including the length of time that has passed since the commission of these offences where Mr.

Matheson now has a young family to support, I am satisfied that an appropriate disposition on both Count 1 and Count 2 is five years; Count 3, a sentence of two years; and Count 4, a sentence of two years, all concurrent, one with the other. There is a DNA order and a lifetime prohibition pursuant to s. 109. [ 34 ] As far as the victim surcharge is concerned, given the sentence I have just imposed, I will make that payable forthwith, Mr. Hickford, and whatever the brief sentence on that matter is, it is concurrent with the five year sentence that I have just imposed. [ 35 ] I think that is everything, but, Mr.

Hickford, I am open to suggestions. [ 36 ] MR. HICKFORD: No, just -- the only thing that I did -- maybe I'm wrong. I -- just when you're referencing your reasons, you referred to Mr. Ziaee as receiving a 36 month sentence. I thought it was a 30 month sentence. I may be -- [ 37 ] THE COURT: I thought it was three years. [ 38 ] MR. HICKFORD: Was it three years? [ 39 ] MR. CRAMER: I -- I believe it may have been two and a half. I -- I could -- [ 40 ] THE COURT: Thirty months. Okay. Sorry about that. The record will reflect 30 months -- [ 41 ] MR.

HICKFORD: Thank you. [ 42 ] THE COURT: -- pursuant to a joint submission. My fault. [ 43 ] Nothing, Mr. Cramer? [ 44 ] MR. CRAMER: Actually, just the issue of forfeiture of -- [ 45 ] THE COURT: Oh, right. [ 46 ] MR. CRAMER: -- IBCs, so I do have a draft order pass -- to pass forward signed by Mr. Hickford on behalf of Mr. Matheson and also by Mr. Hickford, as agent for Mr. Neary, on behalf of Mr. Ziaee. [ 47 ] THE COURT: Okay. We will file that. Let me just have a quick look. Okay. [ 48 ] Anything else, Mr. Cramer? [ 49 ] MR. CRAMER: No, that's everything. Thank you. [ 50 ] THE COURT: Mr. Matheson, that is all.

Thanks very much. Good luck. [ 51 ] Thanks, Mr. Hickford. “B.D. MacKenzie, J.” The Honourable Mr. Justice B.D. Mackenzie