R. v. Truong, 2012 ABQB 661

Court of Queen ’ s Bench of Alberta Citation: R. v. Truong, 2012 ABQB 661 Date: 20121029 Docket: 110500915Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Brian Duy Truong Accused _______________________________________________________ Reasons on Sentencing of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] Brian Duy Truong was charged with a number of criminal offences, most of which related to certain acts committed against the Complainant, with whom he had been involved in an intimate relationship. Following trial, I found Mr.

Truong guilty of: 1. unlawful confinement on August 24, 2009 contrary to s. 279(2); 2. common assault on August 24, 2009 contrary to s. 266;

3. assault with a weapon on January 8, 2010 contrary to s. 267(a); 4. common assault on February 14, 2010 contrary to s. 266; 5. common assault on April 23, 2010 contrary to s. 266; 6. breaching a condition of a recognisance on April 14, 2011 contrary to s. 145(3). [ 2 ] In addition, Mr. Truong pled guilty to: 7. two charges of breaching a condition of a recognisance on May 23, 2010 contrary to s. 145(3); 8. one count of voyeurism contrary to s. 162(1)(b); 9. one count of possession of cannabis marijuana on April 14, 2011 contrary to s. 4(1) of the Controlled Drugs and Substances Act . [ 3 ] It remains for me to sentence Mr. Truong. II. Position of the Parties (

a) Position of the Crown [ 4 ] The Crown argues that there are significant aggravating factors which should be taken into account by the Court in relation to the offences committed by Mr. Truong, and there are no applicable mitigating factors. The Crown seeks a sentence of nine months imprisonment for the offences of confinement and assault that occurred on August 24, 2009.

It seeks consecutive prison sentences of five months for the conviction on assault with a weapon on January 8, 2010, three months for the assault on February 14, 2010 and five months for the assault on April 23, 2010. [ 5 ] On the charge of voyeurism, the Crown submits that an appropriate sentence would ordinarily be a period of five months in jail. However, the Crown asserts that one of the videorecordings evidences a sexual assault by Mr. Truong and while he was neither charged nor convicted of sexual assault relating to the incident in question, the Court should apply s. 725(1)(

c) of the Code and impose a consecutive sentence on the voyeurism conviction of three years and three months. [ 6 ] The Crown further seeks 30 day concurrent jail sentences for the two breaches of a recognisance on May 23, 2010, to be served consecutive to the other offences for which Mr. Truong is to be sentenced. It seeks an additional sentence of 30 days consecutive for the breach on April 14, 2011. Finally, the Crown seeks a sentence of one day in jail for the marijuana offence. (

b) Position of the Accused [ 7 ] The Accused submits that an appropriate global sentence for all matters would be a 90-day period of incarceration to be served intermittently together with a three-year period of probation. He says that the terms of probation should be crafted with a view to rehabilitation and require Mr. Truong to attend counselling for alcohol and marijuana abuse and attend at the Changing Ways or another similar domestic violence intervention program as well as an anger management program. Mr.

Truong submits that this sentence would meet the goals of denunciation and deterrence, while recognizing his rehabilitation prospects. III. Sentencing Principles [ 8 ] The fundamental purpose of sentencing, as set out in the Criminal Code , is to contribute to respect for the law and the

maintenance of a just, peaceful and safe society.

Section 718 sets out the objectives the Court should seek to achieve when imposingsanctions. The most significant objectives in this case are denunciation, deterrence for both Mr. Truong and others from committingthese types of offences, and Mr. Truong’s rehabilitation. IV. The Context (

a) Brian Duy Truong [9] Brian Duy Truong is now 32 years old. He was born and raised in Edmonton. He lives with his parents. Mr. Truong did notfinish grade 11. However, he did attend NAIT and ultimately completed one and one-half years out of a two-year business administrationprogram. He has had work experience in computers, flooring, home renovations, and landscaping. For the last two years, he has beenemployed as a machinist with National Oil Well. [10] Mr. Truong was married from 2004 to 2008. He has not remarried. In addition to his employment as a machinist, Mr.

Truongworks for a promotional company called Boodang which provides electronic music at electronic music events. [11] Mr. Truong has a minor unrelated and dated criminal record. (

b) The Effect of the Parties’ Relationship on Sentencing [12] The Criminal Code provides in s. 718.2(a)(ii) that a Court should take into consideration evidence that the offender abused hisspouse or common-law partner as an aggravating factor when considering the appropriate sentence. [13] Between May 2009 and April 2010, Mr. Truong and the Complainant were involved in an intimate relationship and duringmuch of that time, they resided together.

The Crown takes the position that they were involved in a common-law relationship and arguesthat the Court must consider this as an aggravating feature for each of the offences committed by Mr. Truong against the Complainant.Mr. Truong denies that the relationship was anything more than an intimate relationship between two adults.

While they may haveresided together for a portion of the time they were dating, the Court should not consider it as a common-law relationship. [14] As noted by the Crown, s. 718.2(a)(ii) has been applied to cases of intimate relationships aside from marriage or common lawrelationships, even after the relationships ended (R v Evans, 1997 ABCA 165 , 196 AR 207 at para 12 (CA), R v Lee, 2004ABCA 46, 346 AR 195, R v Wenc, 2009 ABCA 328 at para 24, 460 AR 366). [15] The evidence at trial clearly indicated that the parties resided together at Mr.

Truong’s home for the majority of the timebetween May 2009 and April 2010 during which they were involved in an intimate relationship. Sometime in March 2010, theComplainant moved into her own apartment. Even if it could be argued that the relationship had not yet reached the stage of a fullcommon-law relationship with all its legal rights and obligations, there is no doubt that the relationship was one of intimacy and themajority of the impugned actions of Mr.

Truong against the Complainant occurred in the context of their intimate relationship and whilethey were sharing the same residence. [16] I find that the abuse in the context of their relationship to be an aggravating factor which I will consider in determining theappropriate sentence to impose on Mr. Truong for those offences committed against the Complainant V. Analysis (

a) Unlawful Confinement & Common Assault - August 24, 2009

[ 17 ] With respect to the confinement and assault of the Complainant on August 24, 2009, Mr. Truong bound the Complainant with duct tape and placed duct tape over her mouth to stop her from screaming. Though this confinement lasted a relatively short time, the Complainant had asthma and a panic disorder and testified that it caused her to cry and shake uncontrollably, and frighten her. Some of her hair was pulled out and she sustained a little bruising when the tape was removed. Mr.

Truong’s use of duct tape in the circumstances is an aggravating factor. [ 18 ] It is my view that the appropriate sentence for the unlawful confinement on August 24, 2009 is imprisonment for a period of four months. The appropriate sentence for the assault on August 24, 2009 is 60 days imprisonment, to be served concurrently to the sentence for unlawful confinement. (

b) Assault with a Weapon - January 8, 2010 [ 19 ] Regarding the assault with a weapon on January 8 or 9, 2010, once again Mr. Truong attempted to prevent the Complainant from screaming or yelling, this time by holding a pillow over her nose and mouth. As a consequence of doing so, the Complainant sustained a swollen lip and was shaken up. These are aggravating factors. The appropriate sentence for this offence is a period of incarceration of 90 days to be served consecutively to the four month sentence for the unlawful confinement and assault of August 24, 2009. (

c) Common Assault - February 14, 2010 [ 20 ] The assault committed on February 14, 2010 outside of the Shaw Conference Centre was aggravated by the fact that it took place outside, in public, in the middle of winter, and when the Complainant had lost her shoes. In my view, the appropriate sentence for this offence is a period of 30 days imprisonment to be served consecutively to the other periods of incarceration. (

d) Common Assault - April 23, 2010 [ 21 ] Mr. Truong assaulted the Complainant on April 23, 2010 by biting her. Additional aggravating factors include the fact that Mr. Truong bit the Complainant in the face and caused a permanent scar. [ 22 ] Although this incident occurred after the parties had separated, the appropriate sentence must nevertheless reflect the need to deter violence during the period following separation. [ 23 ] The appropriate sentence for having committed this offence is 60 days imprisonment also to be served consecutively to the other periods of incarceration. (

e) Voyeurism [ 24 ] The charge of voyeurism is a clear exploitation of the trust relationship between Mr. Truong and the Complainant. He recorded her on a number of occasions in different locations and while they were engaged in private and intimate circumstances. [ 25 ] Unlike other Court decisions referred to me where longer periods of incarceration were considered, there was no distribution of the videotapes by Mr. Truong in this case. Aggravating though is the fact that the Complainant’s face can be seen in the videos, there were many of them, Mr.

Truong lied about making them, and they were retained for a period after the end of the relationship. [ 26 ] The Crown submits that the voyeurism conviction would ordinarily call for a period of incarceration of five months.

However, the Crown asks the Court to consider the evidence in one of the recordings as a sexual assault and to sentence Mr. Truong to a period of incarceration of three years and three months, reflective of a sentence for a sexual assault. The Crown asks the Court to apply s. 725(1) (

c) of the Criminal Code and to take into consideration the “facts forming a part of the circumstances of the offence that could constitute the basis for a separate charge”. If the Court does so, then Mr. Truong will be protected from any further proceedings relating to those circumstances by s. 725(2) which requires inclusion of a note on the indictment regarding the facts considered in determining the appropriate sentence, and no further proceedings may be taken with respect to those. [ 27 ] In determining an appropriate sentence, s. 725(1) (

c) provides that the Court “may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge”. These uncharged but proven offences, if considered at all, will invariably be treated as “aggravating circumstances” within the meaning of s. 718.2(a) ( R v Larche , 2006 SCC 56 , [2006] 2 SCR 762 at para 28 ). [ 28 ] Section 724(3) of the Criminal Code provides in part: 724(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, (

a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial; ... (

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender. [ 29 ] The safeguards built into the legislation were emphasized by the Supreme Court in Larche at paras 44 to 46 . First, the requirement in s. 724 of proof beyond a reasonable doubt is imperative in light of the presumption of innocence which applies to all alleged offences. The effect of s. 725(1) (

c) is to increase punishment on the basis of an uncharged offence and where the offender disputes his guilt of that offence, the presumption of innocence applies (at para 44). [ 30 ] The second safeguard mandates that s. 725(1)(

c) may be invoked only where the facts alleged to constitute the aggravating circumstances form part of the circumstances of the predicate offence. That is, unrelated offences, which the accused would not expect to face, are excluded. The third safeguard is that the courts retain a discretion under s. 725(1) (

c) to decline to consider uncharged offences if such would result in unfairness to the accused or, indeed, the Crown (at para 46). [ 31 ] The Crown submits that the evidence is clear that a sexual assault occurred. The video itself entered into evidence shows one incident where the commencement of sexual activity by Mr. Truong occurs while the Complainant is asleep. In the video, the Complainant is heard and seen to object to Mr. Truong proceeding with sexual activity. That is, it would appear from the videorecording that she does not want him to continue, and she expresses this to him.

The consent of a sleeping or unconscious person to the commencement or continuation of sexual activity cannot be inferred ( R v A(J) , 2011 SCC 28 , [2011] 2 SCR 440). [ 32 ] Regarding the first requirement of proof beyond a reasonable doubt, the evidence of the video, the testimony in chief of the Complainant, and the cross-examination of Mr. Truong might lead to the conclusion that the Crown has satisfied the requirement of proving the sexual assault beyond a reasonable doubt. However, as discussed below, I am most concerned with the lack of specific advance notice by the Crown to Mr.

Truong that it would be relying upon evidence of a sexual assault to argue the applicability of s. 725(1) (c). The lack of notice may have resulted in the failure by Mr. Truong to make full answer and defence to this allegation and may have deprived him of the opportunity to put the Crown to the obligation of proving the offence beyond a reasonable doubt. [ 33 ] The second requirement is that the facts must form part of the circumstances of the predicate offence. I am satisfied that the facts alleged by the Crown and as depicted in the video, the testimony of the Complainant and the cross-examination of Mr.

Truong do form part of the circumstances of the voyeurism offence. As such, they could have constituted the basis for a separate charge of sexual assault. However, it must be noted that the voyeurism offence was alleged to have occurred between June 1, 2009 and February 28, 2010 while the incident alleged to constitute the sexual assault is but one of the many incidents depicted on the video during that time frame.

[ 34 ] The third safeguard requires the Court to exercise discretion to decline to consider uncharged offences if it would result in unfairness to the accused. In my view, this factor is directly applicable in this case. In particular, I am concerned that the application of s. 725(1) (

c) and the sentencing of Mr. Truong on the facts alleged by the Crown to support a separate offence of sexual assault will result in unfairness to Mr. Truong. [ 35 ] Mr. Truong pled guilty to the voyeurism charge. The Crown acknowledged that Mr. Truong was never advised that it would be seeking a sentence commensurate with his commission of a sexual assault prior to his doing so. The charge related to a number of video recordings he made of the Complainant which included, in some cases, sexual acts which were consensual.

Again, the incident in question is just one of the many incidents depicted on the videorecording which were recorded between June 1, 2009 and February 28, 2010. [ 36 ] The Crown argues that Mr. Truong should have been aware that it would be relying upon the evidence of a sexual assault, as he knew that the video was being relied upon. The Complainant also gave evidence as to the circumstances occurring while the incident in question was being videorecorded, and Mr.

Truong was cross-examined on the surrounding events at trial without notice that the evidence would be relied upon by the Crown to argue that he should be sentenced in accordance with the guidelines set for sexual assault offences. The Complainant testified before him at trial, and his choice not to cross-examine her on the circumstances was made without knowledge that the Crown would be seeking a substantially greater sentence on the basis of evidence that a sexual assault may have occurred. The Crown thus deprived Mr.

Truong of the opportunity of leading further evidence at trial as to the circumstances existing when the video was taken. [ 37 ] More significantly, Mr. Truong may have adopted a different strategy, in particular with respect to the evidence which would be admitted in relation to the voyeurism charge to which he pled guilty. While it is possible for evidence of additional facts relating to the circumstances of the offence to be adduced on sentencing, an accused is not in a position at that stage of the proceedings to revisit admissibility of trial evidence.

Further, having knowledge of the Crown’s intention on sentencing for voyeurism might have affected his overall strategy in deciding whether to plead guilty or proceed to trial on the various charges he was facing. [ 38 ] In this case, the Crown is asking that the Court consider a sentence on the voyeurism conviction in the range considered as an appropriate starting point for a sexual assault that involves a significant intrusion into the sexual integrity of the Complainant. [ 39 ] Pursuant to s. 271, an individual convicted of committing a sexual assault is liable to imprisonment for up to ten years.

A conviction for voyeurism under s. 162(1)(

b) carries with it a maximum period of imprisonment of five years. When Mr. Truong pled guilty to voyeurism, he was unaware that he risked a sentence of imprisonment of up to ten years. He faced a significantly greater jeopardy than he realized. [ 40 ] It would be unfair to Mr. Truong to be sentenced in accordance with guidelines set by the Alberta Court of Appeal for a sexual assault when he, without notice of his potential jeopardy, pled guilty to an offence that carries a significantly lesser maximum sentence. The Crown should either have charged Mr.

Truong with sexual assault, or should have clearly notified him prior to his guilty plea of the Crown’s intention to argue for such a sentence after conviction. [ 41 ] I would note that the Crown did indicate that when it realized that one of the videorecordings evidenced a sexual assault, it elected not to charge Mr. Truong with that offence as it would either result in a delay of the proceedings or it would create a multiplicity of proceedings, either of which would have been prejudicial to Mr. Truong.

In my view, it is not appropriate to balance relative prejudice in this fashion in the context of an analysis under s. 725(1) (c). The Court in considering s. 725(1) (

c) must be satisfied that there is no unfairness. I find that it would be unfair to Mr. Truong for the Court to consider a significantly greater prison sentence than one that would be appropriate for the offence to which he pled guilty and for which he was convicted. Given that it was open to the Crown to give advance notice to Mr. Truong of its intention, I see no unfairness to the Crown in this result. [ 42 ] In short, in the circumstances of this case, it would be unfair to Mr.

Truong for me to consider the uncharged offence of sexual assault when imposing a sentence on him for voyeurism. [ 43 ] The appropriate sentence on the voyeurism count, given all of the circumstances, including the nature of Mr. Truong’s relationship with the Complainant, is a period of four months imprisonment to be served consecutively to the earlier periods of

incarceration imposed. (

f) Breaches of Recognisance [ 44 ] Mr. Truong pled guilty to the two charges of breaching a condition of a recognisance on May 23, 2010 and was found guilty of breaching a condition of a recognisance on April 14, 2011. [ 45 ] The two breaches on May 23, 2010 were contact and area restriction breaches. Breaches of Court Orders are serious and demonstrate a disregard for the justice system and the authority of the Courts. On each of the two breaches on May 23, 2010, I sentence Mr.

Truong to periods of 15 days in jail to be served concurrently with each other but consecutive to sentences on the other offences. [ 46 ] With respect to the breach of the recognisance by possessing an edged weapon on April 14, 2011, I also sentence Mr. Truong to a period of incarceration of 15 days in jail to be served consecutively to the other offences including the sentences on the other breaches. (

g) Possession of Marijuana [ 47 ] On his conviction for simple possession of marijuana, I sentence Mr. Truong to one day in jail to be served concurrently with the other offences, as proposed by the Crown. (

h) Credit for Time on Judicial Interim Release [ 48 ] From April 15, 2011 to November 23, 2011, Mr. Truong was on release under the terms of a recognisance requiring him to wear an anklet and electronic monitoring. He says that the authorities were tracking his every movement during that time and as a result, he had a greater deprivation than that which would have applied had he been under a conditional sentence order.

He has asked for credit of three and one-half months for the period of time he was on electronic monitoring. [ 49 ] The Crown says that he should receive no credit for that period of time as he was not in custody and there is no evidence of any restrictions to his movement nor the effect of any such restriction on Mr. Truong. [ 50 ] The Crown is correct. There is no evidence before me as to whether the wearing of the anklet and the electronic monitoring of Mr. Truong did restrict his movement in any way nor is there any evidence as to the impact such restrictions may have had on Mr. Truong.

He is not entitled to any credit for that period of time. [ 51 ] From November 23, 2011 to October 29, 2012, Mr. Truong has been on release under the terms of an amended recognisance. His anklet was removed on November 23, 2011 and, in its place, Mr. Truong has been subject to numerous conditions including a curfew between the hours of 8:00 p.m. and 5:00 a.m. daily. He has asked that he receive credit on a one-for-one basis. [ 52 ] While he has not demonstrated the impact such restrictions had on him, it is clear from the terms that they did restrict his movement.

While it must be emphasized that the restrictions he was placed under for his release were, in part, imposed due to his failure to comply with conditions imposed in earlier recognisances, I find that he should receive some credit for the time spent under curfew. Accordingly, I will give Mr. Truong three months credit to reflect the restrictions during this period. (

i) Probation

[ 53 ] The sentences I have imposed above result in a cumulative total period of incarceration for Mr. Truong of 12 months imprisonment. The Crown indicated that in the event that the total sentence was less than two years, it would agree with the submission of Mr. Truong that a period of probation should also be imposed. In my view, a period of probation would also serve the objectives of denunciation and deterrence but importantly, will assist in Mr. Truong’s rehabilitation. In addition to the foregoing sentence of imprisonment, I direct that, for a period of two years from his release, Mr. Truong comply with a Probation Order containing the following conditions: (

a) the compulsory conditions set out in s. 732.1(2); (

b) report to a probation officer within two days and thereafter when and how directed by the probation officer; (

c) abstain from the consumption of alcohol and the consumption of drugs except in accordance with a medical prescription; (

d) abstain from owning, possessing or carrying a weapon; (

e) attend for whatever assessments, treatments or counselling that may be recommended by the probation officer; (

f) provide samples of his breath, blood or urine as requested by the probation officer on reasonable grounds; (

g) perform 240 hours of community service over a period not exceeding 18 months; (

h) no contact whatsoever, direct or indirect, with the Complainant or any member of her immediate family. (

j) Totality [ 54 ] In considering the combined length of the period of incarceration created by the imposition of consecutive sentences, I do not believe it to be unduly long or harsh. That is, I consider it to be in compliance with the totality principle set out in s. 718.2(c). Sentencing is a highly individualized process and I have borne in mind the circumstances of the offences, the nature of the relationship between the parties and the circumstances of the offender. VI. Conclusion [ 55 ] Mr.

Truong is hereby sentenced to a total period of incarceration of 12 months and, upon his release, he must abide by the terms of a probation order for a further period of two years. [ 56 ] There will be a DNA order as a result of Mr. Truong’s convictions for unlawful confinement and assault with a weapon. There will be a forfeiture order for all weapons, drugs, drug paraphernalia, and images or recordings of the Complainant seized during the course of the investigation. Exhibits that belong to other owners shall be returned to the true owners upon proof of ownership, and any electronics that were owned by Mr.

Truong may be returned to him once it is confirmed that the devices do not contain any images or recordings of the Complainant. Heard on October 19, 2012.

Delivered orally on the 29 th day of October 2012. Dated at the City of Edmonton, Alberta this 29 th day of October 2012. Eric F. Macklin J.C.Q.B.A. Appearances: Chantelle Washenfelder for the Crown Peter Shipanoff for the Accused