R v Hoang, 2021 ABQB 140

Court of Queen’s Bench of Alberta Citation: R v Hoang, 2021 ABQB 140 Date: 20210223 Docket: 190117515S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Tony Hoang Appellant _______________________________________________________ Endorsement of the Honourable Mr. Justice J.S. Little _______________________________________________________ I. Introduction [ 1 ] Following his September, 2019 guilty plea in Provincial Court to common assault, Mr.

Hoang in November, 2019 received a suspended sentence with 18 months probation on terms which included no contact with the complainant, living in an approved residence, and attending for assessment, counseling, and treatment for domestic violence. [ 2 ] He appeals that sentence on the ground that the sentencing judge erred in her assessment of the proportionality principle

relative to the appellant’s blameworthiness, resulting in a sentence that is demonstrably unfit. [ 3 ] This appeal was originally scheduled to be heard in 2020. It was adjourned for Covid related and other reasons a number of times. Counsel agreed that I could rely on their written submissions without a further hearing. II. Sentencing Reasons [ 4 ] At the sentencing hearing, the Crown sought a suspended sentence in the 18-24 month range.

Defence counsel sought a conditional discharge. [ 5 ] Judge Dixon in her reasons set out some particulars of the assault, which are consistent with those set out in the respondent’s factum. The complainant and Mr. Hoang were then in a romantic relationship and living together. He grabbed her around the hand and neck. He slapped her.

When she fell to the ground, he dragged out of their apartment where he stood above her and yelled aggressively, all in front of the neighbours. [ 6 ] Judge Dixon had the benefit of a presentence report, though she dismissed the negative observations noted in that report on the basis that it appeared as though they may have been situational – some sort of personality conflict between the author and Mr. Hoang. [ 7 ] She then identified and discussed the following factors relevant to whether a suspended sentence might be appropriate: 1.

She stated that the facts support a conclusion that this was a serious assault committed in the course of a domestic relationship where there exists a vulnerability due to the relationship. 2. She found that this kind of assault is prevalent in the community. 3. She found it to be a compulsive act as opposed to calculated. 4. And she found that it should be a matter of public record given the significance of the offence. III.

Analysis [ 8 ] My role here is to determine whether the sentence is demonstrably unfit or whether there has been an error in principle, a failure to consider a relevant factor, or an overemphasis of the relevant factors. [ 9 ] Here, I discern no such errors or failures. The Crown raised the issue of a suspended sentence, and defence counsel argued for a conditional discharge. In her reasons, Judge Dixon explained why a conditional discharge was not appropriate, namely because Mr.

Hoang needed assessment and counselling so that he did not fall into the same traps that led to this incident. [ 10 ] That being the case, she correctly identified and discussed the relevant factors from R v MacFarlane , 1976 Alta SCAD 6. My role as reviewing justice is not to analyze each conclusion reached by the sentencing judge and, where appropriate, to substitute my conclusions. If it were, I might take issue with the fact that she found there to be a lack of calculation.

This was not, as the Crown points out, a single blow in a moment of anger but something more akin to a prolonged attack, which in fact Judge Dixon recognized later in her reasons. Another reasonable conclusion on the same facts, therefore, might be that this was a calculated act. But as I stated earlier, that is not my role. In any event, Judge Dixon weighed it in Mr. Hoang’s favour but determined that it did not outweigh the other relevant factors. [ 11 ] It is worth pointing out as well that Judge Dixon chose to ignore what appeared to be negative comments in a presentence report. Mr.

Hoang received the benefit of her exercise of that discretion. [ 12 ] Mr. Nanda argues that a consequence of the sentence is that Mr. Hoang, who is a professional poker player, is unable to travel to the US. This impairs his ability to earn a living, which hinders his rehabilitation. [ 13 ] Our CA in R v Hans , 2018 ABCA 253 , confirms that while MacFarlane is now old law, it remains good law.

It points out as well that a collateral consequence such as that argued here, if permitted to be of paramount importance, would have the effect of sacrificing all other sentencing objectives to a consideration of the personal circumstances of the offender. Those circumstances are only part of the exercise. IV. Conclusion [ 14 ] As the Crown points out, the appellant’s real grievance is that he did not receive the result he wanted at the sentencing hearing. That alone is not a ground for me to vary that result. [ 15 ] The appeal is dismissed.

Written submissions confirmed on February 22, 2021. Dated at Edmonton, Alberta this 23 rd day of February, 2021 . J.S. Little J.C.Q.B.A. Appearances: Victoria Young for the Crown Rahul Nanda for the Appellant