



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Henareh,









2017 BCCA 24




Date: 20170112

Docket: CA43305

Between:

Regina

Respondent

And

Esfandiar Henareh

Appellant




Before:



The Honourable Mr. Justice Savage

(In Chambers)




On appeal from: an order
of the Supreme Court of British Columbia, dated
December 4, 2015 (
R. v. Hanareh
, 2015 BCSC 2455,
Vancouver Docket No. 26235-4)

Application for
judicial interim release pending appeal.

Oral Reasons for Judgment




Counsel for the Appellant:



J.P.E. Desbarats





Counsel for the Respondent:



W.P. Riley





Place and Date of Hearing:



Vancouver, British
  Columbia

January 10, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 12, 2017






Summary:

The applicant seeks leave to
appeal sentence and release from custody pending that appeal. Held: leave to
appeal sentence granted, release from custody refused. It has not been shown
that the appeal has sufficient merit that it would cause unnecessary hardship
if the applicant were detained in custody.

[1]

SAVAGE J.A.
: The bail applicant, Esfandiar Henareh, was convicted
of one count of possession of opium for the purpose of trafficking. His
conviction appeal was dismissed 10 January 2017:
R. v. Henareh
, 2017
BCCA 7. Mr. Henareh was sentenced on 4 December 2015 to 3 years imprisonment.

[2]

With the Crown consenting, I granted leave to appeal his sentence on 10 January
2017. Mr. Henareh also seeks release from custody pending the hearing of his
sentence appeal in this court. The Crown is opposing his release. The sentence
appeal could be heard as early as March of this year.

[3]

The applicable provisions of the
Criminal Code
, R.S.C. 1985, c.
C-46 (the 
Code
) with respect to Mr. Henarehs application for release
pending his sentence appeal are ss. 679(1)(b) and (4), which provide:

679(1) A judge of the court of appeal may, in accordance with
this section, release an appellant from custody pending the determination of
his appeal if,



(b) In the case of an appeal to the
court of appeal against sentence only, the appellant has been granted leave to
appeal;



(4) In the case of an appeal referred to in paragraph (1)
(b)
,
the judge of the court of appeal may order that the appellant be released
pending the determination of his appeal or until otherwise ordered by a judge
of the court of appeal if the appellant establishes that

(a) the appeal has sufficient merit
that, in the circumstances, it would cause unnecessary hardship if he were
detained in custody;

(b) he will surrender himself into
custody in accordance with the terms of the order; and

(c) his detention is not necessary in the public interest.

[4]

With respect to s. 679(4) of the
Code
Mr. Henareh must first establish
that his appeal has sufficient merit that, in the circumstances, it would cause
unnecessary hardship if he were detained in custody. I am satisfied that there are
arguable grounds for challenging the order made by the sentencing judge. However,
the Crown says that even if Mr. Henareh were to succeed in reducing the
sentence, that would not result in a term of imprisonment that would justify
his current release. In order to satisfy s. 679(4)(a), Mr. Henareh would
have to show sufficient merit in his grounds of appeal relating to the period
of three years incarceration imposed on him, that failure to release him would
result in unnecessary hardship.

[5]

The merits threshold for obtaining release on bail pending a sentence
appeal is more stringent than that for obtaining release on bail pending a
conviction appeal. This is so because when an applicant applies for bail
pending his or her sentence appeal, there is no longer any question of whether
there was a wrongful conviction:
R. v. Dibbs,
2006 YKCA 3 at paras. 5-9;
R. v. Wilder
, 2007 BCCA 344 at paras. 13-14.

[6]

In imposing the three year sentence on Mr. Henareh the sentencing judge
said this:

[95]      Mr. Justice Davies, in the sentencing of
Mr. Salamat Ravandi, addressed the range of sentencing in cases involving
opium in
Ravandi
at paras. 31-33:

[31]      Having said that,
however, the importation of opium does not generally amount to sentences in the
range of trial for the importation of other Schedule I drugs, including
trafficking in heroin or cocaine: see
R. v. Pocasangre
, 2013 BCSC 193 at
para. 26, and
R. v. Dyal
, 2007 BCSC 623 at para. 18.

[32]      That is so because, as
noted by Justice Wedge in
R. v. Eshghabadi
, 2009 BCSC 1875,
para. 41, in referring to the Ontario Court of Appeal decision in
R. v.
Abolmolouk
(1987), 23 O.A.C. 144:

[41]      The Court of Appeal noted
the evidence of an expert who said that opium is not a very marketable
commodity in Canada except in certain ethnic groups. While a hard narcotic, it
has only one-tenth the strength of heroin. The Court, citing the LeDain Commission
on Non-Medical Use of Drugs, noted that smoking opium produces a decidedly
lower dependence liability than morphine or heroin.

[33]      Accordingly, the range
for sentencing in importation of opium cases is, I have noted, in the three‑to
seven‑year range, not the much higher range appropriate for sentencing
for the importation of heroin or cocaine.

[96]

The
most instructive cases with regard to range of sentence are
Eshghabadi
and
Ravandi
. Although both cases involved importation as well as
possession for the purpose of trafficking, I find the ranges stated therein of
assistance in the circumstances of this case of possession for the purpose of
trafficking.

[97]

Notwithstanding
an appropriate range of sentence being determined, I agree with defence counsel
regarding the individualized nature of sentencing. The cases cited,
particularly
Nesbitt
, have thorough discussions of that fundamental
principle of sentencing. The sentence must be a fit sentence for this offender.

[98]

With
regard to the immigration consequences, I note the case of
R. v. Pham
,
2013 SCC 15. Mr. Justice Wagner states at para. 20:

Collateral immigration consequences
are but one relevant factor amongst many others related to the nature and the
gravity of the offence, the degree of responsibility of the offender and the
offenders personal circumstances.

[99]

In
this particular case, those immigration consequences are not clear. Mr. Henareh
may receive a warning letter rather than a removal order. If such a removal
order is granted, he will likely be allowed to stay in Canada pending the
danger opinion process, and may not be deported depending upon the result of
that process.

[100]

In
this case, the offence is possession for the purpose of trafficking rather than
importing. The primary principles are deterrence and general denunciation. The
quantity is large - 14 kilograms. The opium was imported into Canada as part of
an ongoing scheme involving at least two shipments of which Mr. Henareh
had knowledge. He was a trusted employee of the former co-accused,
Mr. Salamat Ravandi. In that role, he was in the course of assisting to
accept delivery of a shipment on the day that surveillance led to his arrest.

[101]

I
am mindful of the rehabilitation of Mr. Henareh which it is submitted is
evident by his continuing to be a hard-working family man.

[102]

In arriving at a fit
sentence, I take into consideration the findings of fact and the aggravating
and mitigating factors particularly the ongoing involvement and knowledge of
Mr. Henareh; the nature and quantity of the drug opium; and the family
circumstances of Mr. Henareh, as well as his health and immigration status.
The totality of those factual considerations, the principles of sentencing and
the case law take this case outside of the sentencing position of defence
counsel.

[7]

Mr. Henareh referred to three decisions of this Court:
R. v. Pirouz
,
2009 BCCA 51,
R. v. Kreutziger
, 2005 BCCA 231 (
sub nom.

R. v.
Breakey
),
R. v. Mai
, 2005 BCCA 615. In
Pirouz
, this Court
upheld a conditional sentence of 2 years less a day to be followed by two years
of probation. Mr. Henareh argues that he is eligible for a similar sentence. The
sentencing judge concluded that Mr. Pirouzs unique personal circumstances
justified a departure from the usual range to the extent that it permitted her
to consider a conditional sentence:
Pirouz
at para. 10, referring to
R.
v. Pirouz,
2008 BCPC 413 at paras. 79-81 [
Pirouz
(BCPC)].

[8]

Mr. Pirouz was an addict and a convention refugee from Iran who suffered
PTSD and depression, and a medical report said that if imprisoned it was all
but certain that his emotional state will unravel:
Pirouz
at para. 13. This
Court upheld the sentence outside the range of 3-5 years for similar offences
on the basis of personal circumstances, namely the sentencing judges
assessment that the effect that jail would have on this particular person  is
substantial, more so that any of the other parties that have been described in
any of the other cases: at paras. 15-17.

[9]

In
Pirouz
the court observed that sentencing is an inherently
individualized process and that ordinarily incarceration will flow for a
significant period of time from the circumstances before it, but for the rather
unique personal circumstances before them. Mr. Henareh is not similarly situated
to Mr. Pirouz. He is not an addict or a convention refugee, nor is there any
suggestion of mental health issues. He was found in possession of substantially
more opium than Mr. Pirouz (14 kilograms vs. 5.6 kilograms). Mr. Henareh is 46
years of age. Mr. Pirouz was 34.

[10]

Another comparator case is
R. v. Aghabeigi,
2004 BCCA 26. In that case, Ms. Aghabeigi was sentenced to 3 years
imprisonment for possession for the purposes of trafficking, concurrent with a
3 year sentence for importing. The offences involved 9.6 kilograms of opium.
This Court upheld the sentence, though noting that the sentence was lenient
and that [t]he range is clearly much higher than two years less a day: at
paras. 17, 20.

[11]

Ms. Aghabeigi was 41 years of age; Mr. Henareh is 46.
Ms. Aghabeigi had two daughters who were young adults; Mr. Henareh has one
daughter who is a young adult. Both Ms. Aghabeigi and Mr. Henareh had no prior
criminal record. There are some differences. Ms. Aghabeigi suffered from
depression and other health issues and had been living on welfare for several
years. By contrast, Mr. Henareh has a history of employment and has not
advanced any mental health issues. The quantity of opium involved in Ms.
Aghabeigis case was less than that in Mr. Henarehs, and she had one-time
involvement, which is what Mr. Henareh alleges is the appropriate finding here.

[12]

One further issue bears consideration. Other
cases, including
Pirouz
and
R. v. Eshghabadi,
2009 BCSC
1875, have considered the immigration consequences attaching to the sentence
pursuant to s. 36 of the
Immigration and Refugee Protection Act,
S.C.
2001, c. 27
. Those cases were decided when there was a
profound distinction (namely the ability to appeal a removal order) between the
immigration consequences arising from a sentence of two years less a day versus
a sentence of two years or more. Now, this distinction attaches to a sentence of
less than six months versus six months or more:
Faster Removal of Foreign
Criminal Acts,
S.C. 2013, c. 16, s. 24
,
amending the
Immigration
and Refugee Protection Act,
s. 64(2)
.

[13]

The cases discussed above and by the sentencing
judge indicate that the range of sentences, even if there are some errors as
alleged, is well above six months. Collateral immigration consequences are not
a basis for imposing a disproportionately lenient sentence: see
R. v. Pham,
2013
SCC 15 at paras. 14-15;
R. v. Gonzales,
2016 BCCA 436 at paras.
2-3, 23-27, 30;
R. v. Sanghera,
2016 BCCA 251 at paras. 50-53, 58-63.
In my opinion, this is not a case where immigration consequences
will bear on the fit and proportionate sentence.

[14]

I have also considered the other cases referred to by
the applicant but have not found them helpful.
The objective of
releasing an applicant on bail pending a sentence appeal is primarily to ensure
that the time the applicant spends in custody pending his sentence appeal is
not greater than the time, if any, he or she would have spent in custody under
a fit sentence. As I am not convinced that the appeal has sufficient merit that
it would cause unnecessary hardship if Mr. Henareh is detained in custody, I
dismiss the application for release from custody pending the hearing of the
appeal.

The Honourable Mr. Justice Savage


