R. v. Zadeh Date:, 2015 BCPC 336

Citation: R. v. Zadeh Date: 20151201 2015 BCPC 0336 File No: 232534-4C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SEYED NIMA RAZAVI ZADEH REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: B. Wolfe Counsel for the Defendant: R. Fowler, QC Place of Hearing: Vancouver , B.C. Dates of Hearing: March 27, April 7-10, 13, 16, July 6, November 25, 2015 Date of Judgment: December 1, 2015

INTRODUCTION [1] On July 6, 2015, I found Seyed Nima Razavi Zadeh (“Zadeh”) guilty of the sexual assault of J.C. contrary to s. 271(1) of theCriminal Code (the “Code”). [2] I also found Zadeh guilty of administering a stupefying drug, GHB, to J.C. for the purpose of enabling the sexual assault of J.C.contrary to s. 246(

b) of the Code. [3] Prior to the commencement of the trial, Zadeh pled guilty to two breaches of a recognizance by 1) being alone with J.C. on July11, 2014 without proper supervision and 2) being in possession of an illicit drug. ISSUE [4] The sole issue to be determined is the length of a fit and proper sentence, having regard to the circumstances of Zadeh’soffences and the personal circumstances of Zadeh.

CIRCUMSTANCES OF ZADEH’S OFFENCES [5] The circumstances surrounding Zadeh’s offences are detailed in my reasons, which can be found at 2015 BCPC 192 . [6] To give context to this sentencing decision, I will review some of the circumstances of Zadeh’s offences. [7] J.C. was a server at a restaurant in the lower mainland. [8] Several days before July 11, 2014, Zadeh met J.C. at the restaurant where she was working. Zadeh struck up a conversationwith J.C. and told J.C. that his name was “John”. He expressed an interest in J.C. and suggested that the two of them should go out on adate.

J.C. agreed to go out with Zadeh and gave him her phone number. [9] The next day, Zadeh returned to the restaurant and suggested that they go out on a date on July 11, 2014. J.C. agreed toZadeh’s suggestion. She was under the impression that their date would only involve going out for drinks and/or food. In addition,during this interaction, Zadeh told J.C. that he was a medical student and had experience hang gliding. [10] 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 J.C. suggestedgoing out for some drinks.

Zadeh told J.C. that he would like to swing by his apartment building because he wanted to change hisclothes before going out. He told J.C. that they would only stop by his apartment briefly. [11] J.C. accompanied Zadeh to his apartment. Once in his apartment, Zadeh asked J.C. if she wanted something to drink. Sherequested a gin and tonic. Zadeh then poured, what J.C. believed to be, a double gin and tonic. [12] While drinking the gin and tonic, Zadeh asked if she wanted to do a tequila shooter. J.C. liked tequila so agreed.

Zadeh poureda shooter of tequila which J.C. downed in one gulp. [13] J.C. had several more tequila shooters. One of the shooters had a salty taste to it. J.C. asked Zadeh why it tasted salty. Zadehexplained to that he had mixed two tequilas. At that time, J.C. did not think too much about that. [14] 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. [15] After drinking the salty tasting shooter, J.C. began to experience an impact on her physical wellbeing. J.C. became extremelyrelaxed and her body felt heavy.

Things around her started moving in slow motion. [16] At one point, J.C. went onto Zadeh’s balcony. Zadeh followed her and touched her vaginal area over top of her clothing. [17] Later that evening, J.C. sat on the kitchen floor when Zadeh pulled her up and into his bedroom. [18] While in the bedroom, Zadeh removed J.C.’s underwear and pants and began to perform oral sex on her.

J.C. told Zadeh to stopbut he persisted. [19] J.C. began falling in and out of consciousness in the bedroom. [20] At one point, J.C. became conscious and realized that Zadeh was on top of her performing sexual intercourse. [21] At some point, J.C. heard a shower running. She wanted to have a cigarette but could not because she did not have the strengthto pull herself up from the bed. She then fell into a deep sleep. [22] 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 sleep. [23] At around 5:30 in the morning, J.C. woke up and left Zadeh’s apartment. While leaving, she noticed Zadeh sleeping on thecouch in the living room. [24] When J.C. returned to her residence, she found herself in an emotional state. She began to mentally recreate what must haveoccurred at Zadeh’s apartment. She suspected that she had been drugged with GHB. J.C. had tried GHB in the past and the feelings that

she experienced at Zadeh’s apartment were consistent with her prior use of GHB. [ 25 ] J.C. went to the police and reported what had happened to her at Zadeh’s apartment. [ 26 ] Based on the information provided by J.C., the police arrested Zadeh and searched his apartment. GHB was found in a tequila bottle and in a Boost Energy Club drink. ZADEH’S PERSONAL CIRCUMSTANCES [ 27 ] Zadeh is 33 years old. He was born in Tehran in 1982.

At the age of six, Zadeh, along with his family, moved to Dubai and eventually onto Canada. [ 28 ] At an early age Zadeh was sexually assaulted by some boys when he was living in Tehran. [ 29 ] In 2005, Zadeh’s parents separated and his father returned to the Middle East. [ 30 ] Zadeh has a younger brother, with whom Zadeh has a close relationship. [ 31 ] Zadeh also has a close relationship with his mother. [ 32 ] In 2002, after his best friend died, Zadeh began to experience depression.

In addition, following the death of his best friend, Zadeh began to drink excessively, which remains a problem for him. [ 33 ] Zadeh told the probation officer who prepared his pre-sentence report that he began to experiment with GHB in 2011 as both an alcohol substitute and a pharmacological aid to combat depression. [ 34 ] Zadeh acknowledges that he has a substance abuse problem with alcohol and that he wants counselling and treatment to address that issue.

While on remand, Zadeh has attended several sessions of a substance abuse program available at North Fraser Pre-trial Centre. [ 35 ] In 2006, Zadeh obtained a Bachelor’s of Applied Science with a minor degree in Commerce from the University of British Columbia. In 2010, Zadeh received a Bachelor of Construction Management from the British Columbia Institute of Technology. [ 36 ] Zadeh has a solid work history and it would be more than likely that he will secure gainful employment when released from custody. [ 37 ] Twenty reference letters were filed in support of Zadeh.

The letters included references from family, friends and acquaintances. The authors of those letters collectively speak highly of Zadeh’s character and reputation. Many of them were shocked and surprised to hear about the convictions registered against Zadeh. [ 38 ] As of November 25, 2015, Zadeh has been in custody for 351 days at the North Fraser Pre-trial Centre. While in custody, Zadeh has been subjected to physical abuse by inmates. He suffered from three separate assaults, with the most serious assault occurring on July 23, 2015. [ 39 ] The July assault likely resulted from somebody leaving a newspaper

article in general population at the North Fraser Pre-trial Centre. The newspaper

article detailed some of the circumstances surrounding the sexual assault of J.C. by Zadeh. [ 40 ] As a result of the July assault, Zadeh sustained three fractures to the right side of his face. The fractures were described by a physician as “significant right sided facial fractures”. [ 41 ] On August 7, 2015, Zadeh was admitted to the Royal Columbian Hospital for an operation to repair the three facial fractures. The operation procedure 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. [ 42 ] As a result of this assault, Zadeh has sustained ongoing nerve damage to the right side of his face. He also experiences anxiety and depression as a result of this assault. [ 43 ] Zadeh has no criminal record. VICTIM IMPACT [ 44 ] In the pre-sentence report, it is noted that J.C. remains fearful for her personal safety. She remains connected to a Victim Support Worker. [ 45 ] In J.C.’s Victim Impact Statement, she states that since the sexual assault she no longer trusts men and is afraid of going on dates.

In addition, she experienced a loss of energy and began to miss school. [ 46 ] J.C. also states that the sexual assault is always at the back of her mind. She is unable to erase this bad memory. [ 47 ] J.C. is very fearful of coming into future contact with Zadeh and expresses personal safety concerns in her Victim Impact Statement. POSITION OF THE PARTIES The Crown’s Position

[48] 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 anda one-year consecutive sentence should be assigned to the administration of GHB. [49] In relation to the two breach convictions, the breach sentences would be concurrent to each other.

Zadeh should be sentenced toa further six-month sentence consecutive to the substantive offences. [50] The Crown submitted that the circumstances surrounding the offences require that an emphasis must be placed on thesentencing principles of denunciation, retribution, and deterrence. Ultimately, the aggregate sentence must be proportionate. [51] In relation to sexual assault, the Crown submitted that a victim’s right to physical integrity is a fundamental principle.

Additionally, women have an inherent right to exercise full control over their bodies and to engage only in sexual activity that they wishto engage in: R.v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at paras. 28 and 75. [52] The 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 years range generally involve a breach of trust or a significant degree of bodily harm: R. v.McLean, [2014] B.C.J.

No. 1466, at para. 47. [53] 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 pharmacological 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. [54] It was the Crown’s position that the consecutive sentences proposed for the substantial offences were appropriate andnecessary.

In relation to the breach convictions, because they go to the core of the administration of justice, a further consecutivesentence would be justified. [55] 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 apartmentwhere he could administer the GHB and then sexually assault J.C.; - he lied about his name and his background; - he used subterfuge to get J.C. into his apartment (i.e. that he needed to change his clothes); - he administered the GHB shortly after getting into his apartment; - he used tequila shooters as the method for consumption of the GHB as she would gulp down the tequila (and then it would be toolate); - he “tested the waters” by improperly touching J.C. on the balcony; - J.C. trusted him by innocently going to 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; - impact of his actions on J.C.’s emotional state of mind.

ZADEH’S POSITION [56] It is Zadeh’s sentencing position that he should be sentenced to a global sentence of 42 months in relation to the substantiveoffences, less time served, resulting in a net new time of two years. [57] In relation to the breaches, Zadeh argues that the Court should suspend the passage of sentence and place him on probation forthree years. The probation is necessary so he can receive counselling and treatment. In addition, the probation will address J.C.’ssecurity and protection concerns. [58] Zadeh underlines that he has no prior criminal record.

As such, although deterrence, denunciation, and retribution areprinciples that must be emphasized for the substantive offences, Zadeh argues that this Court should also stress Zadeh’s prospect forrehabilitation. [59] Zadeh submitted that contrary to some comments in Dr. Bartel’s psychological assessment and comments in the pre-sentencereport respecting the absence of collateral supports, he has strong collateral support in the community as borne out by the 20 letters ofreference filed on his behalf. [60] Zadeh’s particular concerns respecting the reliability of Dr.

Bartel’s psychological assessment can be summarized as follows: - there were significant internal inconsistencies in the opinions reached by Dr. Bartel. In particular, that he made reference todocuments, including correction log charts, without referencing their sources or the reliability of the information contained in thosematerials. - Zadeh produced an invalid profile for the Personality Assessment Inventory (“PAI”), yet Dr. Bartel then went on to comment onZadeh’s clinical profile with reference to the invalid PAI profile;

- comments in relation to Zadeh self-reporting to “others” respecting his mood and psychological functioning. Who were these“others”?; - Zadeh had only come out from major surgery on August 7, 2015, and then interviewed by Dr. Bartel on August 12 and 13, 2015. Dr. Bartel was clearly aware, as noted in his report, that Zadeh’s “presentation was notable” from the obvious signs of injuries and“noticeable surgical stitching and bandages”. No inquiry was made by Dr.

Bartel respecting the type of medication being taken byZadeh nor was any attempt made to determine the clarity of his thinking at that time. [61] Zadeh submitted that this Court should view Zadeh’s difficulties while on remand as a mitigating factor, particularly in relationto the serious assault committed on Zadeh in July 2015. [62] Zadeh also submitted that other mitigating factors include: 1) he is amenable to counselling and treatment for substance abuseand 2) he has a strong network of family and friends to support him upon his release from prison and to assist with his rehabilitation. SENTENCING ANALYSIS (

i) General Sentencing Principles [63] Sections 718 through 718.2 of the Code articulate the fundamental purpose and principles of sentencing. In this case, theprinciples to be emphasized are denunciation, retribution, and deterrence. [64] Zadeh is a first-time offender. He has agreed that he is in need of counselling and treatment.

Accordingly, his rehabilitation is aconsideration in imposing a fit and proper sentence. [65] Ultimately, the sentence to be imposed on the Zadeh must be proportionate by operation of s. 718.1 of the Code. (ii) General Sentencing Considerations for Sexual Assault [66] The seriousness of the s. 271 offences is reflected by the potential for a maximum sentence of 10 years imprisonment. Thispenalty is significantly higher than penalties for non-sexual assault offences.

In addition, Parliament has acknowledged the seriousnessof sexual assault by defining sexual assault in s. 752 of the Code as a “serious personal injury offence”. [67] Generally, violence is inherent in the commission of a sexual assault. Where the sexual assault amounts to

an act of rape, theobjectives of denunciation and general deterrence gain prominence: R. v. Thurairajah, 2008 ONCA 91 , [2008] O.J. No. 460, atpara. 41 (OCA). [68] The emphasis on denunciation and general deterrence in rape cases recognizes that rape, under any circumstance, constitutes aprofound interference with a woman’s integrity and her right to exercise freedom of choice in sexual relations: R. v.

McCraw, (SCC), [1991] 3 S.C.R. 72, at paras. 29 and 30. (iii) General Sentencing Considerations in Relation to Drug Facilitated Sexual Assault [69] The seriousness of s. 246 offences is reflected by the potential for the imposition of a life sentence. [70] Where a s. 246 offence involves a date rape drug, such as GHB, it is all the more pernicious. To surreptitiously add adangerous drug, such as GHB, to anyone’s drink is a serious violation of that individual’s autonomy: R. v.

Roshinsky, [2015] BCJ 1015,at para. 27 (SC). [71] In addition, date rape drugs, such as GHB, if not prescribed or if homemade, are more dangerous to the unwitting recipient. This is because it would be impossible to assess the quality and integrity of the date rape drug and the offender would not be familiarwith dosage. [72] Where the administration of a date rape drug results in a loss of consciousness, the potential for brain damage and even deathincreases: R. v.

K.D.H., 2012 ABQB 471 , [2012] A.J. 816, at para. 173 (QB). (iv) Victim’s Rights Considerations [73] The Canadian Victims Bill of Rights, S.C. 2015, c. 13, s.2, came into force on July 23, 2015. The

preamble to this legislationrecognizes that a victim’s rights are to be considered throughout the criminal justice system. [74] In addition, protection and security interests have been identified as a right for every victim of a crime. [75]

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. [76]

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. (

v) Harsh Treatment Considerations Suffered by an Offender on Remand [77] The Supreme Court of Canada (“SCC”) in R. v. Summers, 2014 SCC 26 dealt with the issue of enhanced credit for offenders onremand by application of s. 719(3.1) of the Code. The Court confirmed that the enhanced credit is capped at a rate of 1.5:1. Since

Summer’s release, lower courts have been viewing the granting of enhanced credit as the general or default position: R. v. Campbell , 2014 BCCA 235 . [ 78 ] Strictly applied, this leaves no room to mitigate a particularly harsh presentence custody borne by an offender. At para. 72 of Summers, the SCC acknowledged that “[t]he unavoidable consequence of capping pre-sentence credit at this rate is that it is insufficient to compensate for the harshness of presentence detention in all cases”.

As such, the Court held at para. 73 that “individuals who have suffered a particularly harsh treatment, such as assaults in detention, can often look to other remedies, including under s. 24(1) of the Charter ”. [ 79 ] Hill J. in R. v. Tulloch , 2014 ONSC 6120 held that the word “including” indicated that other remedial avenues, in addition to Charter relief, could exist to recognize the mitigatory impact of particularly harsh conditions in a detention facility. This approach was affirmed in R. v. Doyle , 2015 ONCJ 492 . [ 80 ] In Doyle , the offender was in poor health when he was remanded in custody.

He suffered from Type I Diabetes and was dependent on correctional authorities for his medical welfare. The complete lockdown of the offender on at least a quarter of his days while on remand resulted in the offender experiencing perilous blood glucose levels. Ultimately, the Court found that the offender’s experience in pre-trial custody amounted to a “particularly harsh treatment”. [ 81 ] Of particular interest to this sentencing hearing, the Court in Doyle dealt with “particularly harsh treatment” in a hypothetical context of an offender being assaulted by corrections staff or another inmate: 36. ...

An assault by correctional staff, for example, implicates the state in a breach of a prisoner’s constitutionally protected rights and thereby affords, 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 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 in the Common Law. SENTENCE TO BE IMPOSED [ 82 ] Zadeh’s sexual assault of J.C. was serious. Likewise, Zadeh’s use of GHB to facilitate the sexual assault of J.C. was serious. It was through the use of GHB that rendered J.C. incapable of any ability to consent to sexual activity with Zadeh. [ 83 ] The Crown has fairly set out the aggravating circumstances in its submission.

I adopt those circumstances. [ 84 ] In mitigation, Zadeh is a first-time offender. [ 85 ] Zadeh has significant family and community support. [ 86 ] Zadeh is motivated to take counselling and treatment which he requires for his rehabilitation. 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 a fit sentence: Roshinsky , at para. 37. [ 87 ] In mitigation, I also take into account the unprovoked assault committed by an inmate on Zadeh in July 2015.

Zadeh sustained significant injuries as a result of the attack. He 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. [ 88 ] I have placed little weight on Dr. Bartel’s psychological report. For the reasons expressed by Zadeh in his submissions, I do not find Dr.

Bartel’s opinions to be ultimately reliable. [ 89 ] I have taken into account the victim impact on J.C. and J.C.’s rights. In particular, I have considered J.C.’s protection and security interests. J.C. is fearful that Zadeh or his family will want to harm her “down the road” for her willingness to be a witness at Zadeh’s trial. J.C. wants “absolutely no contact” with Zadeh. [ 90 ] In approaching a fit and proper sentence, I must first determine the length of an ppropriate sentence for each committed offence. Thereafter, I must determine whether or not the sentences should run concurrent or consecutive.

Ultimately, the sentences in the aggregate cannot offend the totality principle: R. v. Li , 2009 BCCA 85 , at para. 28 . [ 91 ] I am satisfied that in relation to the substantive offences, consecutive sentences are required to properly address the principles of denunciation, retribution, and deterrence. [ 92 ] I sentence Zadeh to a federal period of imprisonment of two and half years for the sexual assault of J.C.. I sentence Zadeh to a consecutive period of imprisonment of one year for administering GHB to J.C. to facilitate sexual assault. The total sentence is three and half years in prison.

The Crown and Zadeh agree the time served component as enhanced is 1.5 years. The net new time to be served by Zadeh is 2 years. [ 93 ] 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 probation is not legally available. I find probation is required to address Zadeh’s rehabilitation.

Additionally, a probation order is required to address J.C.’s security and protection rights. [ 94 ] I note that the Crown did not proceed on the charges which were the basis for Zadeh’s release from custody on the recognizance that resulted in Zadeh pleading guilty. 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 the estreatment of the surety. [ 95 ] I sentence Zadeh to a suspended sentence for the two offences of breach of a recognizance. 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 orders shall attach to both suspended sentences and shall remain in force for a period of three years. [ 96 ] The mandatory conditions set out in s. 732.1 (2) shall apply including: - you shall abstain from communicating directly or indirectly with J.C.; - you shall refrain from attending at any known residence, place of employment or education institution for J.C.; The additional conditions shall include: - you shall report on or before 3 PM of the next business day following your release from custody to a Probation Officer at 275 East Cordova St., in the City Vancouver, Province of British Columbia, and thereafter as when and where directed; - you shall 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 physician; - 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) (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 physician; - at the direction of your probation officer you shall participate in and successfully any assessments, counselling or treatment, including but not limited to substance abuse management and/or assessment, counselling or treatment for sexual offending; - 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 from your probation officer; - 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. [ 97 ] The Victim Surcharge shall apply in relation to all counts. [ 98 ] A DNA sample is ordered pursuant to s. 487.051 (1) of the Code in relation to the sexual assault offence. [ 99 ] You shall register with the Sexual Offender Information Registry (“SOIRA”) for a period of 20 years pursuant to s. 490.13 (2 ) (

b) of the Code . [ 100 ] For 10 years you are prohibited from having in your possession weapons described in ss. 109 (1) and (2) (a)(ii) of the Code . [ 101 ] I recommend that you be classified 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. [ 102 ] 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 – 8 of the Canadian Victim Bill of Rights . _____________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia