)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 2692

CITATION : R. v. Chegini, 2013 ONSC 2692 COURT FILE NO.: 13-9000065-0000 DATE: 20130507 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – MANSOUR CHEGINI )) )) )) )) ) ) Chris Bundy and Bari Crackower , for the Crown Brian Ross for Mansour Chegini HEARD: April 26, 2013 thorburn j . REASONS FOR SENTENCE THE ISSUE [ 1 ] Mansour Chegini pleaded guilty to importing 50 kilograms of Ephedrine laced in six boxes of towels on November 4, 2010 and to possession of Ephedrine for the purpose of trafficking between November 4 and November 18, 2010. [ 2 ]

Section 718 of the Criminal Code , R.S.C., 1985, c.

C-46 provides that, in sentencing a person convicted of offences, the following objectives must be considered: (1) denunciation of unlawful conduct; (2) deterring the offender and others from committing offences; (3) separation of offenders from society where necessary; (4) rehabilitation of offenders; (5) reparation for harm done to victims or to the community; and (6) promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 3 ] Similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances.

The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender and should reflect the aggravating and mitigating circumstances. [ 4 ] In this case, the Crown and Defence made a joint submission that the appropriate sentence is a global sentence of three and one-half years. (Mansour Chegini would receive a three and one-half year sentence for importation of Ephedrine and a concurrent sentence of two years for possession for the purposes of trafficking Ephedrine.) Moreover, they jointly submit that given the onerous conditions under which Mansour Chegini spent 28 months in pre-sentence custody, that he be given 1.5 days’ credit for each day spent in pre-sentence custody. [ 5 ] For the reasons that follow, I accept the joint submission of the parties as to sentence. [ 6 ] Counsel was able to find only one decision regarding a sentence imposed for the importation and or possession for the purpose of importing or exporting Ephedrine.

In the case of R. v. Dastani , [2013] O.J. No. 1481 , Dastani pleaded guilty to exporting over 53 million Ephedrine tablets worth more than $1.3 million over a four year period. Dastani was found to be a principal driving mind for these offences. He expressed remorse, cooperated with the authorities and had family support. He was sentenced to two years less a day imprisonment. [ 7 ] In R. v. Li , [2009] B.C.J. No. 340 , the British Columbia Court of Appeal imposed a seven year sentence on Li who was found to be the central figure in a scheme of importing 1,800 kilograms of MDP2P.

MDP2P is one of the key ingredients used in manufacturing Ecstacy. In that case, the court found that the offender was motivated by profit, he had a record of several profit-related drug offences and had not paid several fines imposed as sentences.

[ 8 ] By contrast, Mansour Chegini has a dated and very minor record for shoplifting in 2000. [ 9 ] Moreover he played a minor role in this case. He agreed to hold six boxes of towels laced with Ephedrine in exchange for the sum of $10,000. He was motivated at least in part by the fact that he had a young son, no source of income, had lost all of his worldly possessions when he left the country to regain custody of his young son, and was sleeping on the floor on towels in an apartment that was largely unfurnished. [ 10 ] It is agreed that his prospects for rehabilitation are excellent.

He is highly motivated to regain custody of his son, he has some family support and he realizes that if he reoffends he will lose custody of his son.

Moreover he has an education and skill set which should enable him to find employment. [ 11 ] Mansour Chegini must be given credit for time he has spent in pre-sentence custody awaiting trial. [ 12 ] A court, in determining the sentence to be imposed on a convicted offender, may take into account any time spent in custody by the accused as a result of the offence, but the credit for such pre-sentence custody must be limited to “one day for each day spent in custody.” Under the “exception” to this general rule, outlined in s. 719(3.1) of the Code , where “the circumstances justify it” the credit given for pre- sentence custody may be increased to a maximum of “one and one-half days for each day spent in custody.” These statutory provisions were part of the Truth in Sentencing Act, S.C. 2009, chap. 29, which came into force on February 22, 2010. [ 13 ] Mansour Chegini spent 28 months in custody, during which he was severely beaten such that his jaw was wired shut and he had to be placed in protective custody.

The terms of his pre-sentence custody were thereby exceptional and beyond the reasonable expectation of a person awaiting trial and sentence. They therefore justify enhanced credit. [ 14 ] There is no formula to be applied to arrive at a numerical value for the appropriate enhanced credit. In my view, a fair and reasonable enhanced credit to Mansour Chegini to properly reflect the hardship he suffered in custody is 1.5 days’ credit for each day he spent in pre-sentence custody.

This effectively reduces the sentence to be served to time served plus one day. [ 15 ] In addition, the following ancillary orders are made: (

a) Pursuant to section 16(1) (

a) of the Criminal Code , I order that the towels seized be forfeited to Her Majesty in right of Canada and thereafter disposed of as directed by the Minister of Health. (

b) Pursuant to

section 109 of the Criminal Code , I order that the accused be prohibited: (1) from the possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life: and (2) from the possession of any firearm (other than a restricted or prohibited firearm), cross-bow, restricted weapon, ammunition, and explosive substance for life. (

c) As the accused has been found guilty of a “secondary designated offence,’ namely, possession of Ephedrine for the purposes of trafficking, and importing Ephedrine, pursuant to

section 487.051(3) of the Criminal Code , I order the taking of bodily substances from the accused for forensic DNA analysis. Thorburn J. Released: May 7, 2013 CITATION : R. v. Chegini, 2013 ONSC 2692 COURT FILE NO.: 13-9000065-0000 DATE: 20130507 ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – MANSOUR CHEGINI REASONS FOR SENTENCE Thorburn J. Released: May 7, 2013