R. v. Monavari, 2018 BCPC 83

Citation: R. v. Monavari 2018 BCPC 83 Date: 20180322 File Nos: 233528-1, 233625-1 233728-1, 233741-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. KAMI MONAVARI ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. MEYERS Counsel for the Crown: D. Hartney Counsel for the Defendant: G. Ng Place of Hearing: Vancouver , B.C. Date of Hearing: March 22, 2018 Date of Judgment: March 22, 2018

[ 1 ] THE COURT: Mr. Monavari, it comes time to sentence you. First of all on the tobacco charges -- you can have a seat, I will be a while. On the tobacco charges, that is a lot easier because on the two charges, the Crown and your Counsel have both agreed on the appropriate sentence and the fine that the lawyers have presented to me for the tobacco offence in October of 2014 is $2,500 and then for the July 2016 tobacco offence is $5,000.

So that totals, $7,500 as your fines for those two. [ 2 ] Now, were you asking me to impose the penalties from Rev Canada or they are going to look after that, if any, or what? [ 3 ] MR. HARTNEY: This -- as far as the Crown is concerned, this is -- [ 4 ] THE COURT: This is it. Okay -- [ 5 ] MR. HARTNEY: -- this is it, and -- [ 6 ] THE COURT: -- and are victim surcharges applicable on tobacco offences? Does anybody know? [ 7 ] MR. HARTNEY: I do not have submissions on that. I mean there are regular -- they are a

summary matter in the Provincial Court, I assume that they would apply, but my friend can make any submissions that she feels appropriate. So, just to clarify, Your Honour, the 2014 offence is 233528 and that is where the $2,500 should apply. This is for the benefit of the -- [ 8 ] THE COURT: And the $5,000 is 233741 -- [ 9 ] MR. HARTNEY: Thank you, Your Honour. [ 10 ] THE COURT: -- July of -- [ 11 ] MR. HARTNEY: Yes, thank you, Your Honour. [ 12 ] THE COURT: -- 2016. All right. [ 13 ] I will hear later, Ms. Ng, if the victim surcharge applies or does not for this federal offence. [ 14 ] That one was fairly easy.

Now, I have to go to the drug charges that relate to 2014 and 2016, although both of those involved tobacco, as well. These are sentences now for PPT on trafficking in controlled substances,

Schedule I, in 2014 and then again in 2016. The basic case that sets out the sentencing for guideline principles is R. v. Lloyd , a case that both Counsel have referred to, showing a range for a first offender, with no past convictions, who is trafficking to support their own habit, runs from 12 to 18 months and only goes below that or above it in “exceptional circumstances.” [ 15 ] It used to be that there was a mandatory minimum. Now there is no mandatory minimum, but the R. v.

Lloyd case from our Court of Appeal has set guidelines, which are not ironclad, but on the other hand, have said that unless extenuating or extra special circumstances exist, that is what the judges are expected to sentence people selling or possessing for the purpose of sale what we call

Schedule I Drugs.

Schedule I Drugs, includes opiates, opium, OxyContin, cocaine, heroin. [ 16 ] The next case sets out how similar crimes, committed at two different times, particularly if there is a large number of months or years between the two crimes, is R. v. Au , A-u. That is 2006 BCCA 533 . The case essentially says that if there are two sets of drug offences that occur at times that are substantially apart in time, that the offences should be sentenced consecutively.

In your case, there are two years in between crimes and that is a long length of time, although not as long as the Au case, but still a substantial length of time separating one offence from the other. [ 17 ] So, the range that I apply is as set out in R. v. Lloyd and the R. v. Au case that says that the sentences on the two drug cases from 2014 and 2016 will be consecutive. [ 18 ] It is always important to note that what the history of an individual is, with respect to the police and the courts, is important.

This is particularly so, because in the Lloyd case, they are talking about the low end of the scale being reserved for addicts who are trafficking to support their own habits and have no past convictions. In your case, you do have a past conviction for trafficking in controlled substances in February of 2010. Now, that is some eight years ago. However, it was not disposed of until July of 2012. So, that means it is now about seven years old.

Furthermore, the sentence imposed at that time, was what we call a “conditional jail sentence,” which means you are in jail, but you serve it in the Community rather than behind bars. [ 19 ] So, what that means is you were on that Conditional Sentence Order effectively until 2013.

So, we have you coming off the conditional sentence order sometime in 2013 and the first time we hear from you again is when these events come up to lead you to trial and that is the calendar year 2014, which is not too long after the Conditional Sentence Order has expired. [ 20 ] Now, the Crown have taken the view, considering what they say are some of the mitigating factors that your Counsel has obviously persuasively convinced them. They should ask only for 12 months on each of the 2014 and 2016 offences. That is sort of at the “basement level” or the ground level of what the Lloyd case has said.

Your Counsel must have been persuasive to have been able to accomplish that simply because the Lloyd case is saying an individual who is an addict who is trafficking for the first time, should get 12 months and, in this case, you are not a first offender, having had the initial conviction but back in 2012 and also, you are not an addict. [ 21 ] I am not going to go higher than what the Crown has asked for, but your Counsel has asked me to go even lower than the baseline that the Lloyd case has set. I should point out that the first time around, you got a CSO. CSOs are no longer applicable.

Whether you would have gotten a CSO, a Conditional Sentence Order, the second or third time is very doubtful, anyway, but in any event, I cannot give you one and Parliament removed that. [ 22 ] Your counsel was obviously very aware of that and she has asked and said that I consider the possibility instead of a suspended

sentence, or a short jail term or if any jail term imposed was longer, like one year each, they be concurrent. That means served at the same time. The Crown says the Lloyd case tells me firstly, that no suspended sentences, except in the presumably extraordinarily unusual circumstances and secondly the Crown says consecutive sentences should be imposed because of the Au Decision.

The Crown says that it would be a wholly inappropriate sentence in your case, to even consider suspended sentences, nor to consider anything under 12 months per charge. [ 23 ] What we have is a situation where, in 2014, the police observe you doing hand-to-hand transactions. They say about nine of them. They also see the tobacco being illegally stored and for the purpose of selling, they then find drugs in your possession. In 2014, the street value, they say, of those drugs seized from you, are worth $12,885 on the street.

Those drugs included a variety of drugs, OxyContin, codeine, methadone, opium, and crack cocaine and Viagra. The police decide not to arrest you right then. [ 24 ] Another drug bust occurs, in 2016. This time you are arrested for both the 2016 one and on the 2014 offences.

In 2016, they find you with a total street value of those drugs, same type of drugs, $11,748 value. [ 25 ] The total value of the street drugs seized in 2014 and 2016 totals about $25,000.00. [ 26 ] It should not be forgotten, that although I am not sentencing you on it, but I mention it because of some of the comments that your Counsel raised in terms of you just doing these things to make some money to keep yourself and your family in food, clothing, and rent, there was also a total of about $100,000 worth of cigarettes seized from you in both 2014 and 2016.

So, this indicates to me that you are not somebody who is the low level street trafficker who is just selling in small quantities and for small amounts of money and just doing it for getting yourself high. [ 27 ] You also had rented a basement in another house in 2016 to use as a stash house. [ 28 ] In 2014 and 2016, you also had a storage locker to store drugs, money and tobacco. In 2016 and 2014, you had money and drugs at your own house.

You also had a pellet gun in your own house. [ 29 ] I am told that in 2014, 2015 and 2016, you had no job except for selling these drugs in order to keep you and your two children able to pay rent, food, and clothing. [ 30 ] However, I am told that in 2016 in July, in a safety deposit at your Bank, there was some $40,000 in cash there. What I am told by your Counsel is that only $788 U.S. was yours and another $3,000 Canadian was yours. The rest belonged to your sister and mother from Iran who left the money in cash in the safety deposit box so they would have it on their trips to Vancouver.

Your Counsel claims that that was not your money. It was theirs. [ 31 ] You were unemployed for 2014, 2015, 2016, as a result of a restaurant that you opened that went broke and you were left more or less destitute. It does seem strange to me, then, that in the calendar year 2016 in July, you have what your Counsel has told me was still $780 U.S. in that safety deposit box from tips received from your restaurant. Now, that is a long time to be hanging onto that kind of money if the restaurant had closed and you were desperate. Why would you leave that money in the safety deposit box? You made a choice.

You had -- you could have -- if it truly was your mother's and sister's, you could have encroached on their money, steal their money, as it were, but you decided not to do that. Instead, you decided to sell drugs to make a living. The cash that you have said is yours was the $3,000 found in the safety deposit box in July of 2016 and the $788 U.S. in that same safety deposit box, and then when you were arrested in 2016, you had $4,000 in your locker, $2,225 in one jacket pocket, $1,805 in another jacket pocket, and then another $1,777 on your person. The two jackets were in your rented suite.

So you had almost $6,000 on you on the day of the arrest. [ 32 ] The prosecution told me that the sale of drugs was something that you were doing, knowing that it was wrong to do. You had a son who was and still is, unfortunately, horribly addicted to narcotics. Said that he overdosed three times.

According to the counsellor that you went to see, you were somehow able to compartmentalize your life and not see how drug trafficking was so close to home and related to people who actually made your son able to get drugs and become horribly addicted and to personally suffer from that addiction. [ 33 ] The situation is you had a whole potpourri, that means a whole variety of drugs, which I have already listed at your disposal and that you were selling for a profit.

You also had a large amount of cash that was directly derived from the sale of drugs and tobacco. [ 34 ] You had the stash house, a safety deposit box, a storage locker, your own home; you also had a pellet gun in your house. [ 35 ] The Crown say that all of those things, and I agree with that, are indicative of somebody who is carrying on more than like an addict, (which you are not), selling drugs to just support a habit, and accordingly requires a tougher sentence for the purposes of deterrence and denunciation. [ 36 ] Further, as mentioned before, in 2012 you got the Conditional Sentence for 15 months and, very shortly, within months after that ends, you are back out on the street selling narcotics and controlled drugs. [ 37 ] Then, even when the police arrest you and you know what is coming down later, that is, that charges will eventually be laid, come 2016, you are back on the street selling drugs and tobacco. [ 38 ] So, it seems that there was no lesson learned, no deterrence learned by you, after your serving the Conditional Sentence because in 2016 you are back doing exactly the same thing. [ 39 ] Now, your lawyer filed a Report from a Counsellor who you went to see for the purpose of trying to understand, you know, why all this was happening and what you could do, to come to make peace with yourself and your family.

The problem is, is that the charges arose in 2016 and you did not go to see the Counsellor until 2018. It is true you have had seven good sessions with them and that is a positive and a mitigating factor for you.

[ 40 ] One of your friends testified here. Your friends wrote letters, saying that you are honest, you were open, you were a good man, and you really felt remorse. The interesting thing is that that honesty and openness only came about in January of 2018 close to when you were going to be sentenced. They said that in 2012, 2014, 2016, they saw you as a friendly guy, honest and open, but they had no clue and you did not share your criminal past activity with them until January of 2018.

So, although in your evidence, as the Crown have put it, your friends say, "He's a really nice guy," you know, is a statement that is really made in the dark because they did not know the darker side of you at all until you came out with it in January of 2018 for the purposes, I think to have them support you with letters of reference, at the request of your lawyer. [ 41 ] Similarly, your going to the Counsellor, if there were a genuine regret for what you did and you wanted to understand how you could do such a thing in the face of your own son being an addict, you would have done it long before January of 2018. [ 42 ] Now, the Counsellor did say that you had a bad experience in Iran being in the army seeing people blown apart and that certainly left you with severe anxieties, but - and I appreciate he is not a psychiatrist - you neither expressed nor did he suggest that you were suffering from posttraumatic stress disorder.

He says that your upbringing was not cruel or unusual, that you were not an addict, your health was fine. He said that, really, you drifted back into the sale of narcotics and tobacco because your business had fallen into bankruptcy or had closed down, and you were desperate. [ 43 ] The problem is, that if somebody is desperate, they have a number of things they can do other than illegal activities. [ 44 ] You were committing the crimes, in my view, given the amount of drugs that were there, to earn money going far beyond just to make ends meet.

People who earn only the basic living wage, have a horribly tough time, but they are earning about $25,000 per year.

On two given days, one in 2014 and one in 2016, with tobacco and drugs, you are holding about $50,000 worth of property, meaning drugs and cigarettes, and you have extra cash on your person, extra cash in your safety deposit and extra cash in your storage locker. [ 45 ] So, the question is, given that you are not a first offender, given that you are not selling to support a habit, given that you are selling on the second occasion while waiting impatiently or patiently for the shoe to drop on the 2014 offence, you are in full blown sale mode for large amounts and varieties of drugs. [ 46 ] It is my view that given those factors that the sentence has to be looked at very closely in order to assess what is the appropriate sentence for you.

In my mind, it would have been longer than 12 months each had the Crown not asked for only 12 months each. Crown says that they have considered some of what we call “the mitigating factors” for you and that is, you did plead guilty, albeit it was after a voir dire was held, but still it did save Society and the Courts time and money in entering the guilty plea. Rather than pursue a trial I do understand and appreciate that you should get some credit for that as a mitigating factor. [ 47 ] The remorse that you have shown as per Dr. Barker's interviews, I accept. Your friends have expressed that, as well.

It might be late, but nonetheless, it is a factor that through some seven or eight counselling sessions, albeit starting late, have turned your thinking around. I accept that you are now feeling remorse for what you did and an understanding of how your offences can affect Society horribly like they did for your son. [ 48 ] You have family and community support. You have two kids. You have a wife who does not live with you, but you do help with some of her care. I appreciate that it is going to be very hard for your kids, in particular.

However, the Law looks at primary sentencing principles of denunciation and deterrence as the primary principles and rehabilitation as the secondary principle. [ 49 ] So, for all of the foregoing Reasons, my conclusion is one year on the first offence in 2014 of PPT and one-year consecutive on the second offence of PPT, possession for the purpose of trafficking, and they are consecutive to one another. [ 50 ] The Crown has also asked for a number of what we call “Ancillary Orders.” The Forfeiture Order, which I have already signed, leaves the money in the safety deposit box as not being part of that Order because there is going to be a whole civil case on that one as to who it belongs to.

I will leave it to that process. [ 51 ] Under s. 109 of the Criminal Code , you are banned from having any weapons as defined in that

section for your life on each file. [ 52 ] DNA is a discretionary order. Given that the quantity of drugs that you had in your possession to sell in 2014, plus the quantity of drugs you had to sell in 2016; plus the fact that you had a Conditional Sentence Order once before; a pellet gun was found in your house in 2016, I am going to order that the DNA be taken from you at the penal institution, but it be taken in the least intrusive and medically safe manner that it can be. [ 53 ] Is there anything I have missed, either side? [ 54 ] MR.

HARTNEY: Just the victim fine surcharges, Your Honour. [ 55 ] THE COURT: Yes, that is the only thing that is outstanding. [ 56 ] MR. HARTNEY: Yes, that is it. [ 57 ] THE COURT: Well, let me put it this way, that whether it is to be paid or it is not to be paid, the likelihood of him being able to pay it even if I gave him two months after he gets out would be pretty small. So I am going to decline to put in effect a victim surcharge even if one is required under what are non- Criminal Code offences.

In the drug case, it is a requirement, but I am saying that he will not be able to pay it so I give him one day each but -- concurrent, one day concurrent to what he is serving. All right. [ 58 ] MS. NG: Thank you, Your Honour.

[ 59 ] Ms. Ng, you did a fabulous job. I do not know that anybody could have done a better job, but you did not have, as a result of your client's life and what he did, much to work with, but you certainly tried very hard on his behalf. [ 60 ] MS. NG: Thank you, Your Honour. [ 61 ] THE COURT: All right, thank you, we will stand down. (REASONS FOR SENTENCE CONCLUDED)