



W A R N I N G

The
    President of the panel hearing this appeal directs that the following should be
    attached to the file:

An order restricting publication in this
    proceeding under ss. 539(1), (2), (3) or (4) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

539(1)
Prior to the commencement of the taking of evidence at a
    preliminary inquiry, the justice holding the inquiry

(a)

may, if
    application therefor is made by the prosecutor, and

(b)

shall, if application
    therefor is made by any of the accused, make an order directing that the
    evidence taken at the inquiry shall not be published in any document or
    broadcast or transmitted in any way before such time as, in respect of each of
    the accused,

(c)

he or she
    is discharged; or

(d)

if he or
    she is ordered to stand trial, the trial is ended.

(2)

Where
    an accused is not represented by counsel at a preliminary inquiry, the justice
    holding the inquiry shall, prior to the commencement of the taking of evidence
    at the inquiry, inform the accused of his right to make application under
    subsection (1).

(3)

Everyone
    who fails to comply with an order made pursuant to subsection (1) is guilty of
    an offence punishable on summary conviction.

[
Repealed
,
    2005, c. 32, s. 18(2).] R.S., c. C-34, s. 467; R.S.C., 1985, c. 27 (1st Supp.),
    s. 97; 2005, c. 32, s. 18.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dastani, 2014 ONCA 761

DATE: 20141103

DOCKET: C56755

Strathy C.J.O., Cronk and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Afshin Dastani

Appellant

Alan D. Gold and Melanie Webb, for the appellant

Jeanette Gevikoglu, for the respondent

Heard:  October 24, 2014

On appeal from the sentence imposed on March 13, 2013 by
    Justice Peter Bourque of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant operated a large-scale, ephedrine exportation business,
    wherein he repackaged, relabelled and shipped ephedrine products. He pled
    guilty to eight separate offences related to this operation, including:
    possession for the purpose of exporting ephedrine; exporting ephedrine; two
    counts of possession of proceeds of crime; laundering proceeds of crime; and
    fraud against the Canadian government over $5,000, in relation to his evasion
    of at least $500,000 in income taxes.

[2]

The appellant was sentenced to two years less a day imprisonment,
    followed by 2 years probation.

[3]

The appellant appeals his sentence, submitting that the sentencing judge
    erred in ordering a custodial rather than a conditional sentence. He argues
    that the sentencing judge ignored or misapprehended the evidence before him, overemphasized
    general deterrence, and erred in his analysis of the availability of a
    conditional sentence.

[4]

We disagree. Considerable deference is owed to a sentencing decision. An
    appellate court will only intervene if the sentence reflects an error in
    principle, demonstrates a failure to consider or give appropriate weight to a
    relevant factor, or is demonstrably unfit.

[5]

The appellant submits that the sentencing judge misapprehended the
    evidence when he concluded that the appellant was a principal driving mind for
    all offences. He argues that, although he may have been a principal behind the
    ephedrine exportation business, the laundering of the proceeds of crime was
    undertaken by his lawyer. The appellant asserts, therefore, that he was not a
    principal in relation to that offence.

[6]

We see no error in the sentencing judges finding in this regard. The
    agreed statement of facts establishes that the appellant specifically sought
    out the lawyer for assistance in laundering the proceeds of crime and that he
    provided funds to the lawyer for that purpose.

[7]

The appellant further submits that because ephedrine is not an illegal
    drug but a controlled substance, this case is different from typical cases
    involving a large-scale drug operation. Given these unique circumstances, according
    to the appellant, the need for general deterrence is eliminated or
    substantially reduced.

[8]

We would not give effect to this submission. This was a large scale,
    complicated fraud involving the illegal sale and distribution of a controlled
    substance, which included a significant tax fraud. These are not particularly
    unique circumstances and we see no error in the sentencing judges conclusion
    that general deterrence was a significant factor on sentence.

[9]

Although the sentencing judge might have erred in the sequencing of his
    analysis of the availability of a conditional sentence (i.e., in considering
    the availability of a conditional sentence before determining and imposing the
    appropriate sentence), the sentence imposed was supported by the evidence. It
    is clear from the reasons for sentence, that the sentencing judge reviewed and
    considered the mitigating factors raised by counsel for the appellant.  He
    balanced those factors against the aggravating factors and concluded that this
    was not an appropriate case for a conditional sentence. We see no basis for
    appellate interference with that conclusion.

[10]

We
    are also of the view that the sentence was fit in the circumstances. As this
    court recently reiterated in
R. v. Gour
, 2014 ONCA 51, custodial
    sentences are the norm in cases of large-scale fraud. This was a sophisticated
    enterprise, generating large sums, and was carried out over an extended period.
    It is also significant that after an initial police search, the appellant
    re-arranged his affairs to continue his operations. The sentence was well
    within the range of sentences for large-scale government frauds. Indeed, the
    sentence imposed might be considered lenient, notwithstanding the significant
    mitigating factors at play in this case.  The fresh evidence filed on appeal
    does not alter this conclusion.

[11]

Accordingly,
    while leave to appeal sentence is granted, the sentence appeal is dismissed. Given
    the appellants current employment, we are recommending him for the temporary
    absence program.

G.R.
    Strathy C.J.O.

E.A.
    Cronk J.A.

C.
    William Hourigan J.A.


