R. v. Zadeh Date:, 2015 BCPC 401

Citation: R. v. Zadeh Date: 20151201 2015 BCPC 0401 File No: 232534-4-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SEYED NIMA RAZAVI ZADEH EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. RIDEOUT BAN ON PUBLICATION 486.4(2) CCC

Counsel for the Crown: B. Wolfe Counsel for the Defendant: R.S. Fowler, Q.C. Place of Hearing: Vancouver, B.C. Date of Hearing: December 1, 2015 Date of Judgment: December 1, 2015 Introduction [1] THE COURT: On July 6, 2015, I found Seyed Nima Razavi Zadeh guilty of sexual assault of J.C., contrary to s. 271 of theCriminal Code.

I also found Zadeh guilty of administering the stupefying drug known as GHB to J.C. for the purpose of enabling thesexual assault of J.C., contrary to s. 246 of the Code. [2] Prior to the commencement of the trial, Zadeh pled guilty to two breaches of recognizance, one by being alone with J.C. onJuly 11, 2014, without proper supervision, and two, being in possession of an illicit drug. Issue [3] The sole issue to be determined is what is a fit and proper sentence, having regard to the circumstances of Zadeh's offences andhis personal circumstances.

Circumstances of Zadeh's offences [4] The circumstances surrounding Zadeh's offences are detailed in my reasons which can be found at 2015 BCPC 192 . To give context to this sentencing decision, I will review some of the circumstances of his offences. [5] J.C. was a server in a restaurant. Several days before July 11, 2014, Zadeh met J.C. at the restaurant where she was working. Zadeh struck up a conversation with J.C., told J.C. that his name was John. He expressed fondness towards J.C. and suggested that thetwo of them should go out on a date.

J.C. finally agreed to go out with Zadeh, after speaking to various members of the restaurant whoknew Zadeh. She gave him her phone number. [6] The next day, Zadeh returned to the restaurant and suggested they go on a date on July 11, 2014. J.C. agreed to Zadeh'ssuggestion and was under the impression that their date would only involve going out for drinks and/or food. In addition, during thisinteraction, Zadeh told J.C. that he was a medical student and that he had experience hang gliding. [7] On July 11, 2014, Zadeh picked up J.C. in his car.

At that time, Zadeh asked J.C. what she wanted to do and she suggestedgoing out for some drinks. As he was driving, Zadeh said he would like to swing by his apartment building because he wanted to changehis clothes before going out. He told J.C. that they would only stop at his apartment briefly. [8] J.C. accompanied Zadeh to his apartment. Once in his apartment, Zadeh asked J.C. if she wanted something to drink and sherequested a gin and tonic. Zadeh then poured what J.C. believed to be a double gin and tonic. During or after drinking the gin and tonic,Zadeh poured two tequila shooters.

J.C. liked drinking tequila shooters and had hers in one gulp. J.C. had two more tequila shooters,and one of the two had a salty taste to it. J.C. asked Zadeh why it tasted salty. Zadeh explained to her that he had mixed two tequilas. Atthat time, J.C. did not think too much about that. [9] Throughout the evening, J.C. had a total of five to six tequila shooters and two double gin and tonics. Zadeh poured all of thedrinks. While she was drinking, J.C. became extremely relaxed and her body felt heavy. Things around her started moving in slowmotion. At one point, J.C. went out onto Zadeh's balcony.

Zadeh followed her and touched her vaginal area over top of her clothing. [10] Later that evening, J.C. found herself sitting on the floor in the kitchen, when Zadeh pulled her up by her feet and dragged herinto his bedroom. While in the bedroom, Zadeh removed J.C.'s underwear and pants, began to perform oral sex on her. J.C. told Zadehto stop, but he persisted. J.C. began falling in and out of consciousness in Zadeh's bedroom. [11] At one point, J.C. felt Zadeh on top of her performing sexual intercourse. At some point, J.C. heard a shower running.

Shewanted to get a cigarette, but could not because she did not have the strength to pull herself up from the bed. She then fell back into adeep sleep. J.C. woke up briefly and felt Zadeh dressing her, pulling her underwear back onto her and putting her pants back onto her. Zadeh's attempt to put her pants back on caused J.C. to become alert and she pulled her own pants up. She then drifted back into a sleepmode. [12] At around 5:30 in the morning, J.C. left Zadeh's apartment.

At that time, J.C. noticed that Zadeh was sleeping on the couch inthe living room. [13] When J.C. returned to her residence, she was in a complex emotional state. She began to mentally recreate what must haveoccurred at Zadeh's apartment. Soon after, J.C. realized that she had been drugged with GHB. J.C. had tried GHB in the past and thefeelings that she experienced at Zadeh's apartment were consistent with her prior use of GHB. [14] J.C. went to the police and reported what had happened. Based on the information provided by J.C., the police arrested Zadehand searched his apartment.

GHB was found in a tequila bottle and a Boost Energy Club drink.

Zadeh's personal circumstances [15] Zadeh is 33 years of age. He was born in Tehran in 1982. At the age of six, Zadeh, along with his family, moved to Dubai andeventually on to Canada. In 2005, Zadeh's parents separated and his father returned to the Middle East. Zadeh has a younger brotherwith whom Zadeh has a close relationship. Zadeh also has a close relationship with his mother. [16] At an early age, Zadeh was sexually assaulted in Tehran by some boys. In 2002, after his best friend died, Zadeh began toexperience depression.

In addition, following the death of his best friend, Zadeh began to drink excessively, which remains a problemfor him. [17] Zadeh told the probation officer who had prepared his presentence report that he began to experiment with GHB in 2011 as analcohol substitute and as a pharmacological aid to combat depression. [18] Zadeh acknowledges that he has a substance abuse problem with alcohol and that he wants counselling and treatment to addressthat issue.

While in custody, Zadeh has attended the available substance abuse programs at North Fraser Pretrial Centre. [19] In 2006, Zadeh obtained a bachelor's of applied science with a minor degree in commerce from the University of BritishColumbia. In 2010, Zadeh received a bachelor of construction management from the British Columbia Institute of Technology. [20] Zadeh would appear to have a solid work history and it would be more than likely that he will secure gainful employment whenhe is released from custody. [21] Twenty-eight reference letters were filed in support of Zadeh.

The authors of those letters collectively speak highly of Zadeh'scharacter and reputation. Many of them were shocked and surprised to hear about the convictions registered against Zadeh. [22] As of November 25, 2015, Zadeh has been in custody for 351 days at North Fraser Pretrial Centre. While in custody, Zadeh hasbeen subjected to physical abuse. He suffered from three separate assaults with the most serious assault occurring on July 23, 2015. TheJuly assault likely resulted from someone leaving a newspaper

article in the general population

section at the North Fraser PretrialCentre. The newspaper

article detailed some of the circumstances surrounding the sexual assault of J.C. by Zadeh. [23] As a result of the July assault, Zadeh sustained three fractures to the right side of his face. The fractures were described by aphysician as significant right-sided facial fractures. On August 7, 2015, Zadeh was admitted to the Royal Columbian Hospital for anoperation to repair the three facial fractures. The operation treatment included a repair to the right orbit with bone graft, orbital floor,zygoma, and maxillary fixation.

Profile plates were inserted into the facial area to stabilize the orbit and zygoma conditions. As a resultof his assault, Zadeh has sustained ongoing nerve damage to the right side of his face. He also experiences anxiety and depression as aresult of the assault. [24] Zadeh has no criminal record. Victim impact [25] In the presentence report, the probation officer noted that J.C. had remained fearful for her safety and remained connected to avictim support worker.

J.C.'s victim impact statement filed at the sentence hearing indicates that after the sexual assault, she no longertrusts men and is afraid of going on dates. [26] In addition, after the sexual assault, she experienced a loss of energy and began to miss school. J.C. also revealed that thesexual assault has always been at the back of her mind and she is unable to erase this bad memory. J.C. is very fearful of retribution andcoming into future contact with Zadeh, and expressed personal safety concerns in her victim impact statement.

Position of the parties The Crown's position [27] It is the Crown's sentencing position that Zadeh should be sentenced to four to four and a half years in jail less time served. Incalculating the breakdown of the sentence, the Crown submitted that three years should be assigned to the sexual assault conviction andone year consecutive should be assigned to the administration of the GHB. [28] In relation to the two breach convictions, the breach sentences would be concurrent to each other.

Zadeh should be sentenced toa further six-month consecutive sentence to the substantive offences. [29] The Crown submitted that the circumstances of Zadeh's offences and the personal circumstances of Zadeh require an emphasison the sentencing principles of denunciation, retribution, deterrence.

In addition, the sentence must be proportionate. [30] In relation to sexual assault, the Crown submitted that a victim's right to physical integrity is a fundamental principle: R. v.Ewanchuk, (SCC), [1999] 1 S.C.R. 330 at paragraph 28. [31] Specifically, women have an inherent right to exercise full control over their bodies and to engage only in sexual activities thatthey wish to engage in: Ewanchuk at paragraph 75. [32] Crown submitted that the range of sentence for sexual assault involving intercourse with adults is two to six years.

Casesattracting a jail sentence in the three- to five-year range generally involve a breach of trust or a significant degree of bodily harm: R. v.McLean, [2014] B.C.J. No. 1466 at paragraph 47. [33] The Crown submitted that Zadeh's administration of GHB in J.C.'s tequila is all the more serious as there was no way todetermine the integrity of the GHB used by Zadeh. When factoring in the amount of alcohol consumed by J.C., coupled with the GHB,

the potential for dangerous physical harm was obvious. [ 34 ] It was the Crown's position that the consecutive sentences proposed for the substantive offences were appropriate and necessary. [ 35 ] In relation to the breach allegations, that they go to the very core of the administration of justice and a further consecutive sentence would be required. [ 36 ] The Crown's submissions in relation to the aggravating factors arising from the facts of this case can be summarized as follows: Zadeh pursued J.C. His suggestion that they go on a date was a ruse.

His real purpose was to get her back to his apartment where he could administer the GHB and then sexually assault J.C. He lied about his name and background. He used subterfuge to get J.C. into his apartment; i.e., that he needed to change his clothes. He administered GHB shortly after getting into his apartment. He used tequila shooters as the method for the consumption of the GHB, as she would gulp down the tequila and then it would be too late. [ 37 ] He tested the waters by improperly touching J.C. on the balcony. J.C. trusted him by innocently going into his apartment.

There was penile penetration without the use of a condom. He tried to mask his behaviour by attempting to dress J.C. after committing the sexual assault. Lastly, the impact of his actions on J.C.'s emotional state of mind.

Zadeh's position [ 38 ] It is Zadeh's sentencing position that he receive a total of 42 months in relation to the substantive offences less time served, resulting in net new time of two years. [ 39 ] In relation to the breaches, Zadeh's position is that the court suspend the passage of sentence and place him on probation for three years, so that he can receive counselling and treatment, coupled with preventative conditions of no contact with J.C. [ 40 ] Zadeh notes that he has no criminal record.

He is a first offender and while deterrence, denunciation, and retribution are principles that must be emphasized for the substantive offences, the court cannot ignore Zadeh's prospect for his future rehabilitation. [ 41 ] Zadeh submitted that contrary to some comments in Dr. Bartel's psychological assessment and in the presentence report respecting the absence of collateral supports, that Zadeh in fact has strong collateral support in the community, as borne out by the 28 letters of reference filed on his behalf. [ 42 ] Zadeh's particular concerns respecting the reliability of Dr.

Bartel's psychological assessment can be summarized as follows: - that there were significant internal inconsistencies in the opinions reached by Dr. Bartel, in particular that he made reference to documents, including correctional log charts, without referencing their sources or the reliability of the information contained in those materials; - that Zadeh produced an invalid profile for his Personality Assessment Inventory, yet Dr.

Bartel then went on to comment on Zadeh's clinical profile with reference to the invalid PAI profile; - comments in relation to Zadeh's self-reporting to others respecting his mood and psychological functioning, who were these others? - that Zadeh had only come out from major surgery on August 7, 2015, and then interviewed by Dr. Bartel on August 12 and 13; - Dr. Bartel was clearly aware, as noted in his report, that Zadeh's presentation was notable from the obvious signs of injuries and the noticeable surgical stitching and bandages; - no inquiry was made by Dr.

Bartel respecting the type of medication being taken by Zadeh, nor was any attempt made to determine the clarity of his thinking at that time. [ 43 ] Zadeh submitted that the court can find that Zadeh's difficulties on remand can be viewed as a mitigating factor, in particular in relation to the serious assault committed on him in July of 2015.

Zadeh submitted that it is mitigating that he is amenable to counselling and treatment and he has taken some substance abuse programs at North Fraser Pretrial Centre. [ 44 ] Zadeh submitted that he has a strong network of family and friends to support him upon his release from prison to assist with his rehabilitation. Legal framework General sentencing principles [ 45 ]

Section 718 through s. 718.2 of the Code animate the sentencing process. In relation to sentencing in this case, the principles to be emphasized are denunciation, retribution, and deterrence. [ 46 ] Zadeh is a first offender. He has agreed that he is in need of counselling and treatment. Accordingly, his rehabilitation is a consideration in imposing a fit and proper sentence. Ultimately, the sentence to be imposed on Zadeh must be proportionate by operation of s. 718.1 of the Code .

General sentencing considerations for sexual assault [ 47 ] The seriousness of the s. 271 offence is indicated by the potential for a 10-year prison sentence as the maximum sentence. This penalty is significantly higher than penalties for non-sexual assault offences. In addition, Parliament has identified the seriousness of

sexual assault by defining sexual assault in s. 752 of the Code as a serious personal injury offence. [48] Generally violence is inherent in the commission of a sexual assault. Where the sexual assault amounts to

an act of rape, thenthe objectives of denunciation and general deterrence gain prominence: R. v. Thurairajah, 2008 ONCA 91 , [2008] O.J. No. 460at para. 41 (ONCA). [49] The need to give prominence to denunciation and general deterrence where the sexual assault is

an act of rape recognizes thereality that rape under any circumstances must constitute a profound interference with a woman's integrity and her right to exercisefreedom of choice in sexual relations: R. v. McCraw, (SCC), [1991] 3 S.C.R. 72 at paragraphs 29 and 30. General sentencing considerations in relation to drug-facilitated sexual assault [50] The seriousness of s. 246 offences is indicated by the potential for a lifelong sentence in the most extreme case. [51] Where the s. 246 offence involves a date-rape drug, such as GHB, it is all the more pernicious.

To surreptitiously add apotentially dangerous drug such as GHB to anyone's drink is a serious violation of that individual's autonomy: R. v. Roshinsky, [2015]B.C.J. No. 1015 at paragraph 27. [52] In addition, date-rape drugs such as GHB, if not prescribed or if homemade, are all the more dangerous to the unwittingrecipient if the offender is not familiar with the quality of the date-rape drug or the appropriate dosage. [53] Where the administration of the date-rape drug results in a loss of consciousness, then the potential for brain damage and evendeath increases: R. v. K.D.H., 2012 ABQB 471 , [2012] A.J.

No. 816 at paragraph 173 (QB). Victims rights considerations [54] The Canadian Victims Bill of Rights came into force and effect on July 23, 2015. In the

preamble to the legislation, it isrecognized that a victim's rights are to be considered throughout the criminal justice system. In addition, protection and security interestshave been identified as a right for every victim of a crime. [55]

Section 9 of the Act reads: Every victim has the right to have their security considered by the appropriate authorities in the criminal justice system. [56]

Section 10 of the Act reads: Every victim has the right to have reasonable and necessary measures taken by the appropriate authorities in the criminal justice systemto protect the victim from intimidation and retaliation. Harsh treatments - considerations suffered by an offender on remand [57] The Supreme Court of Canada in R. v. Summers, 2014 SCC 26, dealt with the issue of enhanced credit for offenders on remandby application of s. 719(3.1) of the Code. [58] The court confirmed that the enhanced credit is capped at a rate of 1.5 to one.

Since Summers' release, lower courts have beenviewing the granting of enhanced credit as the general or default position: R. v. Campbell, 2014 BCCA 235. [59] Strictly applied, this leaves no room to mitigate a particularly harsh presentence custody borne by an offender.

At paragraph 72,the Supreme Court of Canada in Summers acknowledged that: The unavoidable consequence of capping pre-sentence credit at this rate is that it is insufficient to compensate for the harshness of pre-sentence detention in all cases. [60] As such, the court held at paragraph 73 that: . . . individuals who have suffered particularly harsh treatment, such as assaults in detention, can often look to other remedies, includingunder s. 24(1) of the Charter. [61] Hill J. in R. v.

Tulloch, 2014 ONSC 6120, held that the word "including" indicated that other remedial avenues, in addition toCharter relief, can exist to recognize the mitigatory impact of particularly harsh conditions in a detention facility. [62] This approach was affirmed in R. v. Doyle, 2015 ONCJ 492. In Doyle, the offender was in poor health when he was remandedin custody. He suffered from Type 1 Diabetes and was dependent on the correctional authorities for his medical welfare.

The completelockdown of the offender on at least a quarter of his days remanded in custody resulted in the offender experiencing perilousblood-glucose levels. Ultimately the court found that the offender's experience in pre-trial custody amounted to a particularly harshtreatment. [63] Of particular interest to this sentencing hearing, the court in Doyle dealt with particularly harsh treatment and any availableadditional sentencing relief in a hypothetical context of an offender being assaulted by corrections staff or other inmates.

Paragraph 36of that decision reads: An assault by correctional staff, for example, implicates the state in a breach of a prisoner’s constitutionally protected rights and therebyaffords, at least arguably, a remedy under s. 24(1) of the Charter. On the other hand, it is analytically difficult, if not impossible, to

assign responsibility to the state for an unprovoked and unanticipated assault committed by a cellmate in circumstances where a remand facility's administrators made every reasonable effort to ensure the physical security of all inmates. Both "assaults in detention" may well amount to "particularly harsh treatment". If so, both likely merit a remedy of mitigation. But one is rooted in a constitutional claim and the second [is rooted] in the common law. Sentence to be imposed [ 64 ] Zadeh's sexual assault of J.C. was serious. Likewise, Zadeh's use of the GHB to facilitate the sexual assault of J.C. was serious.

It was through the use of the GHB that J.C. became a helpless victim for Zadeh's sexual gratification. [ 65 ] The Crown has fairly set out the aggravating circumstances in their submissions. I adopt those circumstances. [ 66 ] In mitigation, Zadeh is a first offender and he enjoys significant family and community support.

Zadeh is motivated to take counselling and treatment which he requires for his rehabilitation. [ 67 ] Though the sexual assault of J.C. was facilitated by the administration of GHB, I am satisfied that the rehabilitation of Zadeh is also an important goal in structuring his sentence: Roshinsky at paragraph 37. [ 68 ] I also take into account the unprovoked assault by an inmate on Zadeh in July of 2015. He sustained significant injuries as a result of that attack. Zadeh is likely to experience lifelong nerve damage to the right side of his face.

I accept his submission that he continues to suffer from anxiety and depression as a result of the assault. I find the unprovoked assault amounted to particularly harsh treatment suffered by Zadeh while on remand. [ 69 ] I have taken into consideration the psychological report of Dr. Bartel. For the reasons expressed by Zadeh in his submissions, I do not find the opinions reached by Dr. Bartel to be ultimately reliable. [ 70 ] I have taken into account the victim right interests of J.C.

In particular, I have taken into account J.C.'s protection and security interests, as she is fearful that Zadeh or his family will want to harm her down the road for her taking

part in the court process. J.C. wants "absolutely no contact" with Zadeh. [ 71 ] In approaching a fit and proper sentence, I must first determine what would be an appropriate sentence and whether or not the sentences should run concurrent or consecutive. Thereafter, I must determine whether or not the sentences in the aggregate offend the totality principle: R. v.

Li , 2009 BCCA 85 at 28. [ 72 ] I am satisfied that in relation to the substantive offences, that consecutive sentences are required to properly address the principles of denunciation, retribution, and deterrence. [ 73 ] I sentence Zadeh to a federal period of imprisonment of two and a half years for the sexual assault of J.C. I sentence Zadeh to a consecutive period of imprisonment for one year for administering GHB to J.C. to facilitate the sexual assault. The total sentence is three and a half years in prison.

To be deducted from that sentence is one and a half years, leaving the net new time sentence of two years. [ 74 ] The Crown has submitted that Zadeh's breaches of recognizance are serious and should attract a six-month consecutive sentence to the sentences on the substantive counts.

If I was to sentence Zadeh to further prison time over and above the two-year sentence, then he would not be subject to a probation order which would promote his rehabilitation and address J.C.'s security and protection rights. [ 75 ] I note that the Crown did not proceed on the charges that were the basis for Zadeh's release from custody on a recognizance. The Crown is certainly not without other remedies. Zadeh's mother agreed to post surety bail in the sum of $20,000.

The Crown does have the option to apply for estreatment of the surety. [ 76 ] I sentence Zadeh to a suspended sentence for the two offences of breach of a recognizance. [ 77 ] Pursuant to s. 731 of the Code , I sentence Zadeh to a period of probation. By operation of s. 732.2(2)(

b) of the Code , the probation order shall remain in force and effect for a period of three years. [ 78 ] The mandatory conditions set out in s. 732.1(2) shall apply, including the mandatory condition that you shall abstain from communicating, directly or indirectly, with J.C.

You shall refrain from attending at any known to you residence, place of employment, or education institution for J.C. [ 79 ] Report on or before 3:00 p.m. of the next business day following your release from custody to a probation officer at 275 East Cordova Street in the City of Vancouver, Province of British Columbia; thereafter as, when, and where directed. [ 80 ] Abstain from the possession and/or consumption of alcohol or other intoxicating substances, including drugs as defined by the Controlled Drugs and Substances Act , except excluding drugs as prescribed by a physician. [ 81 ] You shall provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer, or someone designated under s. 732.1(3) and (9) of the Code to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that you have breached a condition of this order that requires you to abstain from the possession and/or consumption of alcohol or other intoxicating substances including drugs as described by the Controlled Drugs and Substances Act , except excluding drugs as prescribed by a physician. [ 82 ] At the direction of your probation officer you shall participate in and successfully complete any assessments, counselling, or treatment including, but not limited to, substance abuse management and/or assessment, counselling, or treatment for sexual offending. [ 83 ] You shall abstain from contact or communication with any adult female person in a private place, unless an immediate family

member is present or unless you have obtained in advance the written permission of your probation officer. [ 84 ] You shall not have in your possession any weapons as defined by s. 2 of the Code , including knives, except for the immediate purpose of the preparation and consumption of food or for lawful employment purposes. [ 85 ] The victim surcharge shall apply in relation to all counts. [ 86 ] DNA is ordered pursuant to s. 487.051 of the Code in relation to the sexual assault offence. [ 87 ] You shall register with the Sexual Offender Information Registry for a period of 20 years pursuant to s. 490.13(2)(

b) of the Code . [ 88 ] For 10 years you are prohibited from having in your possession weapons as defined in s. 109(1) and (2) of the Code . [ 89 ] I recommend on the warrant of committal that you be sent to Mountain Correctional Institution. Correction officials will determine if you should access available sex offender programs, which may include your participation in the moderate intensity national sex offender program or the high intensity national sex offender program. [ 90 ] The Crown shall inform J.C. of the sentence imposed on Zadeh.

In addition, the Crown shall comply with the information component contained in ss. 6 through 8 of the Canadian Victims Bill of Rights. [ 91 ] That concludes my sentence. Once I have reviewed the decision, I will have it forwarded to counsel and it will be posted to the Internet. (REASONS CONCLUDED)